June 18, 1788
The Convention, according to the order of the day, again resolved itself into a Committee of the whole Convention, to take into farther consideration, the proposed plan of Government.–Mr. Wythe in the Chair.
(The 1st section, of the 2d article, still under consideration.)
Mr. Monro, after a brief exordium in which he insisted, that on the judicious organization of the executive power, the security of our interest and happiness greatly depended; that in the construction of this part of the Government, we should be cautious in avoiding the defects of other Governments, and that our circumspection should be commensurate to the extent of the powers delegated; proceeded as follows: The President ought to act under the strongest impulses of rewards and punishments, which are the strongest incentives to human actions. There are two ways of securing this point. He ought to depend on the people of America for his appointment and continuance in office: He ought also to be responsible in an equal degree to all the States; and to be tried by dispassionate Judges: His responsibility ought further to be direct and immediate. Let us consider in the first place then, how far he is dependent on the people of America. He is to be elected by Electors, in a manner perfectly dissatisfactory to my mind. I believe that he will owe his election, in fact, to the State Governments, and not to the people at large. It is to be observed, that Congress have it in their power to appoint the time of choosing the Electors, and of electing the President. Is it not presumeable they will appoint the times of choosing the Electors, and electing the President, at a considerable distance from each other, so as to give an opportunity to the Electors to form a combination? If they know that such a man as they wish, for instance the actual President, cannot possibly be elected by a majority of the whole number of Electors appointed, yet if they can prevent the election by such majority, of any one they disapprove of, and if they can procure such a number of votes as will be sufficient to make their favourite one of the five highest on the list, they may ultimately carry the election into the General Congress; where the votes in choosing him shall be taken by States, each State having one vote. Let us see how far this is compatible with the security of republicanism. Although this State is to have ten and Massachusetts eight Representatives, and Delaware and Rhode-Island are to have but one each, yet the votes are to be by States only. The consequence will be, that a majority of the States, and these consisting of the smallest, may elect him. This will give an advantage to the small States. He will depend therefore on the States for his re-election and continuance in office, and not on the people. Does it not bear the complection of the late Confederation? He will conduct himself in accommodation to them, since by them he is chosen, and may be again. If he accom¬modates himself to the interest of particular States, will they not be obliged by State policy to support him afterwards?–Let me inquire into his responsibility if he does not depend on the people. To whom is he responsible? To the Senate, his own council. If he makes a treaty bartering the interests of his country, by whom is he to be tried?–By the very persons who advised him to perpetrate the act. Is this any security? I am persuaded that the Gentleman who will be first elected, may continue in the office for life.
The situation of the United States, as it applies to the European States, demands attention. We may hold the balance among those States. Their Western territories are contiguous to us. What we may do without any offensive operations, may have considerable influence. Will they not then endeavor to influence his general councils? May we not suppose that they will endeavour to attach him to their interest, and support him, in order to make him serve their purposes? If this be the case, does not the mode of election present a favorable op¬portunity to continue in office the person that shall be President? I am persuaded they may, by their power and intrigues, influence his re-election. There being nothing to prevent his corruption, but his virtue, which is but precarious, we have not sufficient security. If there be a propriety in giving him a right of making leagues, he ought not to be connected with the Senate.–If the Senate have a right to make league, there ought to be a majority of the States.
The Vice-President is an unnecessary officer. I can see no reason for such an officer. The Senate might of their own body elect a Pres¬ident, who would have no dangerous influence. He is to succeed the President in case of removal, disability, &c. and is to have the casting vote in the Senate. This gives an undue advantage to the State he comes from, and will render foreign powers desirous of securing his favor, to obtain which they will exert themselves in his behalf. I am persuaded that the advantage of his information will not counterbal¬ance the disadvantages attending his office.
The President might be elected by the people, dependent upon them, and responsible for mal-administration. As this is not the case, I must disapprove of this clause in its present form.
Mr. Grayson,–Mr. Chairman.–One great objection with me is this. If we advert to the Democratical, Aristocratical, or Executive branch, we will find their powers are perpetually varying and fluctuating throughout the whole. Perhaps the Democratic branch would be well constructed were it not for this defect. The Executive is still worse in this respect than the Democratic branch. He is to be elected by a number of Electors in the country; but the principle is changed, when no person has a majority of the whole number of Electors appointed, or when more than one have such a majority, and have an equal number of votes, for then the Lower House is to vote by States. It is thus changing throughout the whole. It seems rather founded on ac¬cident, than any principle of Government I ever heard of. We know that there scarcely ever was an election of such an officer, without the interposition of foreign powers. Two causes prevail to make them in¬termeddle in such cases: One is to preserve the balance of power; the other to preserve their trade. These causes have produced interfer¬ences of foreign powers in the election of the King of Poland. All the great powers of Europe interfered in an election which took place not very long ago, and would not let the people choose for themselves. We know how much the powers of Europe have interfered with Sweden.–Since the death of Charles the XIIth, that country has been a Republican Government. Some powers were willing it should be so: Some were willing her imbecility should continue: Others wished the contrary: And at length the Court of France brought about a revo¬lution, which converted it into an absolute Government. Can America be free from these interferences? France after losing Holland will wish to make America entirely her own. Great-Britain will wish to increase her influence by a still closer connection. It is the interest of Spain, from the contiguity of her possessions in the Western hemisphere to the United States, to be in an intimate connection with them, and influence their deliberations if possible. I think we have every thing to apprehend from such interferences. It is highly probable the Pres¬ident will be continued in office for life. To gain his favor they will support him. Consider the means of importance he will have by cre¬ating officers. If he has a good understanding with the Senate, they will join to prevent a discovery of his misdeeds.
Whence comes this extreme confidence, that we disregard the ex-ample of ancient and modern nations? We find that Aristocracies never invested their officers with such immense powers. Rome had not only an Aristocratical, but also a Democratical branch; yet the Consuls were in office only two years. This quadrennial power cannot be justified by ancient history. There is hardly an instance where a Republic trusted its Executive so long with much power.–Nor is it warranted by modern Republics. The delegation of power is in most of them only for one year.
When you have a strong Democratical and a strong Aristocratical branch, you may have a strong Executive.–But when those are weak, the balance will not be preserved if you give the Executive extensive powers for so long a time. As this Government is organized, it would be dangerous to trust the President with such powers. How will you punish him if he abuse his power? Will you call him before the Senate? They are his counsellors and partners in crimes. Where are your checks? We ought to be extremely cautious in this country. If ever the Government be changed, it will probably be into a Despotism.–The first object in England was to destroy the Monarchy: But the Aristo–cratic branch restored him, and of course the Government was or-ganized on its ancient principles. But were a revolution to happen here, there would be no means of restoring the Government to its former organization.–This is a caution to us not to trust extensive powers. I have an extreme objection to the mode of his election. I presume the seven Eastern States will always elect him. As he is vested with the power of making treaties, and as there is a material distinction between the carrying and productive States, the former will be disposed to have him themselves. He will accommodate himself to their interests in forming treaties, and they will continue him perpetually in office.–Thus, mutual interest will lead them reciprocally to support one another. It will be a Government of a faction, and this observation will apply to every part of it. For, having a majority, they may do what they please. I have made an estimate which shews, with what facility they will be able to re-elect him. (The number of Electors is equal to the number of Representatives and Senators, viz: ninety-one. They are to vote for two persons. They give therefore one hundred and eighty-two votes. Let there be forty-five votes for four different candidates, and two for the President. He is one of the five highest, if he have but two votes which he may easily purchase. In this case, by the third clause, of the first section, of the second article, the election is to be by the Representatives, according to States. Let New-Hampshire be for him; a majority of its
|3 Representatives is-||2|
|A majority of seven states is
Thus the majority of seven States is but 15, while the minority amounts to 50.
The total number of voices, 91 Electors, and 65 Representatives, is 156.
Voices in favor of the President, are two State Electors, and 15 Representatives, which are in all 17/139[,] So that the President may be re-elected by the voices of 17 against 139.) It may be said, that this is an extravagant case, and will never happen. In my opinion, it will often happen. A person who is a favorite with Congress if he gets but two votes of Electors, may, by the subsequent choice of 15 Represen¬tatives, be elected President. Surely the possibility of such a case, ought to be excluded. I shall postpone mentioning in what manner he ought to be elected, till we come to offer amendments.
Mr. George Mason contended, that this mode of election was a mere deception–a mere ignus fatuus on the people of America, and thrown out to make them believe they were to choose him; whereas it would not be once out of fifty that he would be chosen by them in the first instance; because a majority of the whole number of votes was re¬quired. If the localities of the States were considered, and the probable diversity of opinions of the people attended to, he thought it would be found, that so many persons would be voted for, that there seldom or never could be a majority in favor of one, except one great name, who he believed would be unanimously elected. He then continued thus:–A majority of the whole number of Electors is necessary to elect the President. It is not the greatest number of votes that is required, but a majority of the whole number of Electors. If there be more than one having such majority, and an equal number, one of them is to be chosen by ballot of the House of Representatives. But if no one have a majority of the actual number of Electors appointed, how is he to be chosen? From the five highest on the list, by ballot of the Lower House, and the votes to be taken by States!–I conceive he ought to be chosen from the two highest on the list. This would be simple and easy. Then indeed the people would have some agency in the election. But when it is extended to the five highest, a person having a very small number of votes may be elected. This will almost constantly happen. The States may choose the man in whom they have most confidence. This is, in my opinion, a very considerable defect. The people will in reality have no hand in his election.
It has been wittily observed, that the Constitution has married the President and Senate–has made them man and wife. I believe the consequence that generally results from marriage, will happen here. They will be continually supporting and aiding each other: They will always consider their interests as united. We know the advantage the few have over the many. They can with facility act in concert and on an uniform system: They may join scheme and plot against the people without any chance of detection. The Senate and President will form a combination that cannot be prevented by the Representatives. The Executive and Legislative powers thus connected, will destroy all bal¬ances: This would have been prevented by a Constitutional Council to aid the President in the discharge of his office; vesting the Senate at the same time with power of impeaching them. Then we should have real responsibility. In its present form, the guilty try themselves. The President is tried by his counsellors. He is not removed from office during his trial. When he is arraigned for treason he has the command of the army and navy, and may surround the Senate with 30,000 troops. It brings to my recollection the remarkable trial of Milo at Rome. We may expect to see similar instances here. But I suppose, that the cure for all evils–the virtue and integrity of our Represen¬tatives, will be thought a sufficient security. On this great and impor¬tant subject, I am one of those (and ever shall be) who object to it.
Mr. Madison,–Mr. Chairman.–I will take the liberty of making a few observations which may place this in such a light as may obviate objections. It is observable, that none of the Honorable Members objecting to this, have pointed out the right mode of election. It was found difficult in the Convention, and will be found so by any Gentleman who will take the liberty of delineating a mode of electing the President, that would exclude those inconveniences which they appre¬hend. I would not contend against some of the principles laid down by some Gentlemen if the interests of some States only were to be consulted. But there is a great diversity of interests. The choice of the people ought to be attended to. I have found no better way of selecting the man in whom they place the highest confidence, than that delin¬eated in the plan of the Convention–nor has the Gentleman told us. Perhaps it will be found impracticable to elect him by the immediate suffrages of the people. Difficulties would arise from the extent and population of the States. Instead of this, the people choose the Elec¬tors.–This can be done with ease and convenience, and will render the choice more judicious. As to the eventual voting by States, it has my approbation. The lesser States, and some large States, will be gen¬erally pleased by that mode. The Deputies from the small States argued, (and there is some force in their reasoning) that when the people voted, the large States evidently had the advantage over the rest, and without varying the mode, the interests of the little States might be neglected or sacrificed. Here is a compromise.–For in the eventual election, the small States will have the advantage. In so extensive a country, it is probable that many persons will be voted for, and the lowest of the five highest on the list may not be so inconsiderable as he supposes. With respect to the possibility, that a small number of votes may decide his election, I do not know how, nor do I think that a bare calculation of possibility ought to govern us. One Honorable Gentleman [William Grayson] has said, that the Eastern States may, in the eventual election, choose him. But in the extravagant calculation he has made, he has been obliged to associate North-Carolina and Georgia, with the five smallest Northern States. There can be no union of interests or sen¬timents between States so differently situated.
The Honorable Member last up [George Mason] has committed a mistake in saying, there must be a majority of the whole number of Electors appointed. A majority of votes, equal to a majority of the Electors appointed, will be sufficient. Forty-six is a majority of ninety-one, and will suffice to elect the President.
Mr. Mason arose, and insisted that the person having the greatest number of votes would not be elected, unless such majority consisted of the whole number of Electors appointed: That it would rarely hap-pen that any one would have such a majority, and as he was then to be chosen from the five highest on the list, his election was entirely taken from the people.
Mr. Madison, expressed astonishment at the construction of the Hon¬orable Member, and insisted, that nothing was necessary but a number of votes equal to a majority of the Electors, which was forty-six. For the clause expressly said, that “The person having the greatest number of votes shall be President, if such number be a majority of the whole number of Electors appointed.” Each had two votes, because one vote was intended for the Vice President. I am surprised, continued Mr. Madison, that the Honorable Member has not pointed out a more proper mode, since he objects to this.
But the Honorable Gentleman [George Mason] tells us, that the President and Senate will be in alliance against the Representatives, and that from the advantage of the few over the many, they may seduce, or over-rule the Representatives. But if this be the case, how can he contend for the augmentation of the number of the latter? For the more you increase their number, the more danger in the dispro¬portion. The diversity of circumstances, situation and extent of the different States, will render a previous combination, with respect to the election of the President, impossible.
(The 1st clause, of the 2d section, read.)
Mr. George Mason, animadverting on the magnitude of the powers of the President, was alarmed at the additional power of commanding the army in person. He admitted the propriety of his being Com¬mander in Chief, so far as to give orders, and have a general super–intendency: But he thought it would be dangerous to let him command in person without any restraint, as he might make a bad use of it. He was then clearly of opinion, that the consent of a majority of both Houses of Congress should be required before he could take the com¬mand in person. If at any time it should be necessary that he should take the personal command, either on account of his superior abilities, or other cause, then Congress would agree to it: And all dangers would be obviated by requiring their consent. He called to Gentlemens’ rec¬ollection, the extent of what the late Commander in Chief might have done, from his great abilities, and the strong attachment of both of¬ficers and soldiers towards him, if, instead of being a disinterested, he had been an ambitious man. So disinterested and amiable a character as General Washington might never command again. The possibility of danger ought to be guarded against. Although he did not disapprove of the President’s consultation with the principal executive officers, yet he objected to the want of an Executive Council, which he con¬ceived to be essentially necessary to any regular free Government. There being none such, he apprehended, a Council would arise out of the Senate, which for want of real responsibility he thought dan¬gerous. You will please, says he, to recollect that removal from offices, and future disqualification to hold any offices, are the only conse¬quences of conviction on impeachment. Now I conceive that the Pres¬ident ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen at some future day, that he will establish a Monarchy, and destroy the Republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought at least to be excepted. This is a weighty objection with me.
Mr. Lee reminded his honorable friend, that it did not follow of necessity, that the President should command in person. That he was to command as a civil officer, and might only take the command when he was a man of military talents, and the public safety required it. He thought the power of pardoning, as delineated in the Constitution, could be no where so well placed as in the President. It was so in the Government of New-York, and had been found safe and convenient.
Mr. Mason replied, that he did not mean that the President was of necessity to command, but he might if he pleased; and if he was an ambitious man, he might make a dangerous use of it.
Mr. George Nicholas, hoped the Committee would advert to this–that the army and navy were to be raised by Congress, and not the President. It was on the same footing with our State Government: For the Governor with the Council, were to embody the militia, but when actually embodied, they were under the sole command of the Gov¬ernor. The instance adduced was not similar. General Washington was not a President. As to possible danger, any commander might attempt to pervert what was intended for the common defence of the com¬munity, to its destruction. The President at the end of four years, was to relinquish all his offices.–But if any other person was to have the command, the time would not be limited.
Mr. Mason answered, that it did not resemble the State Constitution, because the Governor did not possess such extensive powers as the President, and had no influence over the navy. The liberty of the people had been destroyed by those who were military commanders only. The danger here was greater by the junction of great civil powers to the command of the army and fleet. Although Congress are to raise the army, says he, no security arises from that:–For in time of war they must and ought to raise an army, which will be numerous, or otherwise, according to the nature of the war, and then the President is to command without any controul.
Mr. Madison, adverting to Mr. Mason’s objection to the President’s power of pardoning, said, it would be extremely improper to vest it in the House of Representatives, and not much less so to place it in the Senate: because numerous bodies were actuated more or less by passion, and might in the moment of vengeance forget humanity.–It was an established practice in Massachusetts for the Legislature to determine in such cases. It was found, says he, that two different sessions, before each of which the question came, with respect to pardoning the delinquents of the rebellion, were governed precisely by different sentiments–the one would execute with universal vengeance, and the other would extend general mercy.
There is one security in this case to which Gentlemen may not have adverted:–If the President be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself; the House of Representatives can impeach him:–They can remove him if found guilty:–They can suspend him when suspected, and the power will devolve on the Vice-President: Should he be suspected also, he may likewise be suspended till he be impeached and removed, and the Legislature may make a temporary appointment. This is a great se¬curity.
Mr. Mason vindicated the conduct of the Assemblies mentioned by the Gentleman last up. He insisted, they were both right:–For in the first instance when such ideas of severity prevailed, a rebellion was in existence.–In such circumstances, it was right to be rigid. But after it was over, it would be wrong to exercise unnecessary severity.
Mr. Madison replied, that the Honorable Member had misunder¬stood the fact:–For the first Assembly was after the rebellion was over. The decision must have been improper in one or the other case. It marks this important truth, says he, that numerous bodies of men are improper to exercise this power. The universal experience of mankind proves it.
(The 2d clause, of the 2d section, read.)
Mr. George Mason thought this a most dangerous clause, as thereby five States might make a treaty; ten Senators, the Representatives of five States, being two-thirds of a quorum. These ten might come from the five smallest States, and make a treaty that would ruin the other States. By the Confederation nine States were necessary to concur in a treaty.–This secured justice and moderation. His principal fear, however, was, not that five, but that seven States–a bare majority would make treaties to bind the Union.
Mr. George Nicholas, in answer to Mr. Mason, insisted that we were on a more safe footing in this Constitution than in the Confederation. The possibility of five States making treaties, was founded on a supposition of the non-attendance of the Senators from the other States. This non-attendance, he observed, might be reciprocated. It was pre¬sumeable, that on such important occasions they would attend from all the States, and then there must be a concurrence of nine States. The approbation of the President, who had no local views, being elected by no particular State, but the people at large, was an additional security.
Mr. Mason differed widely from the Gentleman. He conceived, that the contiguity of some States, and remoteness of others, would prevent that reciprocity which he had mentioned. Some States were near the seat of Government–others far from it:–For instance, Georgia was 800 or 900 miles from it. Suppose, says he, a partial treaty is made by the President, and is to be ratified by the Senate.–They do not always sit. Who is to convene them?–The President. Is it presumeable that he would call distant States to make the ratification,–or those States whose interest he knew to be injured by the treaty he had proposed? This I conceive will have a contrary effect from what the Gentleman says.
A desultory conversation took place.–
Mr. Nicholas asked, if it was presumeable that the President, who depended on the people for his political existence, would sacrifice the interest of the eight largest States, to accommodate the five smallest?–The Gentleman had said once, that the Senate would be always sitting, and yet five States were now to effect the business because the rest were away.
Mr.Lee compared the possibility of non-attendance of the Senators to that in our State Legislature.–It consisted of 170 Members:–A majority was 86, which were sufficient to make a House:–A majority of these was 44, which were competent to pass any law. He demanded if all our laws were bad, because 44 might pass them?–The case was similar. Although two-thirds of the Senators present could form a treaty, it was not presumeable it could often happen, that there should be but a bare quorum present on so important an occasion, when the consequence of non-attendance was so well known.
Mr. Madison thought it astonishing that Gentlemen should think, that a treaty could be got with surprise, or that foreign nations should be solicitous to get a treaty only ratified by the Senators of a few States–Were the President to commit any thing so attrocious as to summon only a few States, he would be impeached and convicted, as a majority of the States would be affected by his misdemeanor.
Mr. Henry begged Gentlemen to consider the condition this country would be in, if two-thirds of a quorum should be empowered to make a treaty:–They might relinquish and alienate territorial rights, and our most valuable commercial advantages.–In short, if any thing should be left us, it would be because the President and Senators were pleased to admit it. The power of making treaties by this Constitution, ill-guarded as it is, extended farther than it did in any country in the world. Treaties were to have more force here than in any part of Christendom.–For he defied any Gentleman to shew any thing so extensive in any strong energetic Government in Europe. Treaties rest, says he, on the laws and usages of nations.–To say that they are mu¬nicipal, is to me a doctrine totally novel.–To make them paramount to the Constitutions and laws of the States is unprecedented. I would give them the same force and obligation they have in Great-Britain, or any other country in Europe. Gentlemen are going on in a fatal career:–But I hope they will stop before they concede this power unguarded and unaltered.
Mr. Madison, instead of being alarmed, had no doubt but the Con¬stitution would increase, rather than decrease, the security of territorial rights and commercial advantages, as it would augment the strength and respectability of the country. The Honorable Gentleman [Patrick Henry], says he, has said we are making great innovations in extending the force of treaties. Are not treaties the law of the land in England? I will refer you to a book which is in every man’s hand–Blackstone’s Commentaries. It will inform you that treaties made by the King are to be the supreme law of the land. If they are to have any efficacy, they must be the law of the land: They are so in every country. He thinks that by the power of making treaties, the empire may be dis¬membered in time of peace. The King of Great-Britain has the power of making peace, but he has no power of dismembering the empire, or alien[at]ing any part of it. Nay, the King of France has no right of alien[at]ing any part of his dominions, to any power whatsoever. The power of making treaties does not involve a right of dismembering the Union.
Mr. Henry asked, how the power of the King of Great-Britain with respect to dismembering the empire, would stand, if the Constitution had declared, that treaties would be effectual notwithstanding any thing in the Constitution or laws of the country? He would confess his error, if the Gentleman could prove that the power of the King of Great-Britain and that of Congress, as to making treaties, were similar.
Mr. Madison conceived, that as far as the King of Great-Britain had a constitutional power of making a treaty, such a treaty was binding. He did not say that his power was unlimited. One exception was, that he could not dismember the empire.
Mr. Grayson, after discriminating the difference of what was called the law of nations in different countries and its different operations, said he was exceedingly alarmed about this clause. His apprehensions were increased from what he had seen. He went over the grounds which had been before developed, of the dangers to which the right of navigating the Mississippi would be exposed, if two-thirds of the Senators present had a right to make a treaty to bind the Union. Seven States had already discovered a determined resolution of yielding it to Spain. There was every reason, in his opinion, to believe they would avail themselves of the power as soon as it was given them. The pre¬vention of emigrations to the Westward, and consequent superiority of the Southern power and influence, would be a powerful motive to impel them to relinquish that river. He warmly expatiated on the utility of that navigation, and the impolicy of surrendering it up. The consent of the President (he) (is) considered as a trivial check, if indeed it was any. For his election would be so managed, that he would always come from a particular place, and he would pursue the interest of such place. Gentlemen had said, that the Senators would attend from all the States. This, says he, is impracticable if they be not nailed to the floor. If the Senators of the Southern States be gone but one hour, a treaty may be made by the rest, yielding that inestimable right. This paper will be called the law of nations in America: It will be the great charter of America: It will be paramount to every thing. After having once consented to it, we cannot recede from it. Such is my repugnance to the alienation of a right which I esteem so important to the hap¬piness of my country, that I would object to this Constitution, if it contained no other defect.
Mr. Nicholas, in answer to the observations of the Gentleman last up [William Grayson] on the law of nations, said, he thought it was dictated by no particular nation–That there was no such thing as a particular law of nations; but that the law of nations was permanent and general–It was superior to any act or law of any nation. It implied the consent of all, and was mutually binding on all, being acquiesced in for the common benefit of all. Gentlemen recurred to their favorite business again–their scuffle for Kentucky votes. He compared the King of England’s power to make treaties, to that given by this clause. He insisted they resembled each other. If a treaty was to be the su¬preme law of the land here, it was so in England. The power was as unlimited in England, as it was here. Let Gentlemen, says he, shew me that the King can go so far, and no further; and I will shew them a like limitation in America. But, say they, the President has no check. The worthy Member says, the weight of power ought to be in this part of the Continent, because the number of inhabitants will be greater here. If so, every freeholder having a right to vote for the President, by the interposition of the Electors, he will attend to their interests. This is a sufficient check.
Mr. Henry,–Mr. Chairman.–Gentlemen say, that the King of Great-Britain has the same right of making treaties that our President has here. I will have no objection to this, if you make your President a King. But I will adduce a difference between an American treaty, and an English treaty. Recollect the case of the Russian Ambassador: He was arrested contrary to the rights of his master. The Russian Emperor demanded the man at whose instance his Ambassador was arrested, to be given up to him, to be put to instant death. What did the Queen say? She wrote him, that that was something paramount to what she could do:–That it exceeded her power to comply with his demand, because it was contrary to the Constitution and laws. But how is it here? Treaties are binding, notwithstanding our laws and Constitutions. Let us illustrate this fatal instance:–Suppose the case of the Russian Ambassador to happen here. The President can settle it by a treaty, and have the man arrested, and punished according to the Russian manner. The Constitutions of these States may be most flagrantly vi¬olated without remedy. And still will Gentlemen compare the two cases? So great was the anxiety of Queen Anne, that she wrote a letter to the Russian Prince with her own hand, apologizing for her inability to comply with his demands. The Parliament was consulted, and a law made to prevent such arrests for the future. I say again, that if you consent to this power, you depend on the justice and equity of those in power. We may be told, that we shall find ample refuge in the law of nations. When you yourselves have your necks so low that the Pres¬ident may dispose of your rights as he pleases, the law of nations cannot be applied to relieve you. Sure I am if treaties are made, infringing our liberties, it will be too late to say that our constitutional rights are violated. We are in contact with two powers: Great-Britain and Spain. They may claim our most valuable territories, and treaties may be made to yield them. It is easy on our part to define our unalienable rights, and expressly secure them, so as to prevent future claims and disputes. Suppose you be arraigned as offenders and violators of a treaty made by this Government. Will you have that fair trial which offenders are entitled to in your own Government? Will you plead a right to the trial by jury? You will have no right to appeal to your own Constitution. You must appeal to your Continental Constitution. A treaty may be made giving away your rights and inflicting unusual punishments on its violators. It is contended, that if the King of Great-Britain makes a treaty within the line of his prerogative, it is the law of the land. I agree that this is proper, and if I could see the same checks in that paper which I see in the British Government, I would consent to it. Can the English Monarch make a treaty which shall subvert the com¬mon law of England, and the Constitution? Dare he make a treaty that shall violate Magna Charta, or the Bill of Rights? Dare he do any thing derogatory to the honor, or subversive of the great privileges of his people? No, Sir. If he did it would be nugatory, and the attempt would endanger his existence.
The King of France calls his Parliament to give him power to make what regulations with regard to treaties, they may think conducive to the interest of the nation. In the time of Henry the Vth, a treaty with Sigismund, King of Poland, was ratified by the Parliament. You have not even as much security as that. You prostrate your rights to the President and Senate. This power is therefore dangerous and destructive.
Governor Randolph,¬Mr. Chairman.–I conceive that neither the life, nor property of any citizen, nor the particular right of any State, can be affected by a treaty. The lives and properties of European subjects are not affected by treaties; which are binding on the aggregate community in its political social capacity.
The Honorable Gentleman [Patrick Henry] says, that if you place treaties on the same footing here, as they are in England, he will consent to power; because the King is restrained in making treaties. Will not the President and Senate be restrained? Being creatures of that Constitution, can they destroy it? Can any particular body, insti¬tuted for a particular purpose, destroy the existence of the society for whose benefit it is created? It is said, there is no limitation of treaties. I defy the wisdom of that Gentleman to shew how they ought to be limited. When the Constitution marks out the powers to be exercised by particular departments, I say no innovation can take place. An Honorable Gentleman says, that this is the great charter of America. If so, will not the last clause, of the fourth article, of the Constitution, secure against dismemberment? It provides, that “Nothing in this Con¬stitution shall be so construed as to prejudice any claims of the United States, or of any particular State.” And if this did not constitute security, it follows from the nature of civil association, that no particular part shall sacrifice the whole.
The Committee then rose–And on motion, Resolved, That this Con¬vention will, to-morrow, again resolve itself into a Committee of the whole Convention, to take into farther consideration, the proposed Constitution of Government.
And then the Convention adjourned until to-morrow morning, nine o’clock.
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