Elliot’s Debates: Volume 3
In Convention, Richmond, Wednesday, June 18, 1788[The 1st section of article 2 still under consideration.]
Mr. MONROE, 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 places 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 presumable 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 wishfor instance, the actual Presidentcannot 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 favorite 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 vote is 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 reelection and continuance in office, and not on the people. Does it not bear the complexion of the late Confederation? He will conduct himself in accommodation to them, since by them he is chosen, and may be again. If he accommodates 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 the 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 endeavor 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 opportunity to continue in office the person that shall be President? I am persuaded they may, by their power and intrigues, influence his reelection. 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 leagues, 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 president 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 counterbalance the disadvantages attending his office.
The President might be elected by the people, dependent upon them, and responsible for maladministration. 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 this democratical, aristocratical, or executive branch, we shall 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 accident 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 intermeddle in such cases:one is, to preserve the balance of power; the other, to preserve their trade. These causes have produced interferences of foreign powers in the election of the king of Poland. All the great powers of Europe have 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 XII., 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 revolution, 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 President will be continued in office for life. To gain his favor, they will support him. Consider the means of importance he will have by creating 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 example 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 crime. 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 aristocratic branch restored him, and of course the government was organized 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 to 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 shows with what facility they will be able to reelect 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 3d clause of the 1st section of the 2d 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||15|
|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
|Voices in favor of the President are, 2
state electors and 15 representatives,
So that the President may be reelected 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 of Congress, if he gets but two votes of electors, may, by the subsequent choice of 15 representatives, 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 ignis fatuus on the American people,and thrown out to make them believe they were to choose him; whereas it would not be once out of fifty times that he would be chosen by them in the first instance, because a majority of the whole number of votes was required. If the localities of the states were considered, and the probable diversity of the 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, in my opinion, is a very considerable defect. The people will, in reality, have no hand in the election.
It has been wittily observed that the Constitution has married the President and Senatehas 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 interest as united. We know the advantage the few have over the many. They can with facility act in concert, and on a 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 balances: 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 the 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 thirty thousand 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 evilsthe virtue and integrity of our representativeswill be thought a sufficient security. On this great and important 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 observed 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 apprehend. 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 delineated 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 electors.
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 generally 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 interest 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 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 interest or sentiments between states so differently situated.
The honorable member last up 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 was one of the whole number of electors appointed; that it would rarely happen 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 honorable 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 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 overrule 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 disproportion. The diversity of circumstances, situation, and extent, of the different states, will render previous combination, with respect to the election of the President, impossible.[The 1st clause of the 2d section was 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 commander-in-chief, so far as to give orders and have a general superintendency; 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 command 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 gentlemen’s recollection the extent of what the late commander-in-chief might have done, from his great abilities, and the strong attachment of both officers and soldiers towards him, if, instead of being 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 conceived to be 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 dangerous. You will please, says he, to recollect that removal from office, and future disqualification to hold any office, are the only consequences of conviction on impeachment. Now, I conceive that the President 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 nowhere 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 not advert to this; that the army and navy were to be raised by Congress, and not by the President. It was on the same footing with our state government; for the governor, with the council, was to imbody the militia, but, when actually imbodied, they were under the sole command of the governor. 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 community 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, said 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 control.
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 person, and there be grounds to believe he will shelter him, 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 fill he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.
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 circumstance, 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 misunderstood 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 was then read.]
Mr. GEORGE MASON thought this a most dangerous clause, as thereby five states might make a treaty; ten senatorsthe representatives of five statesbeing two thirds of a quorum. These ten might come from the five smallest 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, statesa bare majoritywould make treaties to bind the Union.
Mr. GEORGE NICHOLAS, in answer to Mr. Mason, insisted that we were on a safer 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 presumable 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 eight or nine hundred 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 presumable 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 presumable 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 one hundred and seventy members: a majority of these was forty-four, which were competent to pass any law. He demanded if all our laws were bad because forty-four might pass them. The case was similar. Although two thirds of the senators present could form a treaty, it was not presumable 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 up 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 atrocious 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 show 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 municipal is, to me, a doctrine totally novel. To make them paramount to the Constitution 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 Constitution 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, 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 handBlackstone’s Commentaries. It will inform you that the 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 dismembered 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 alienating any part of it. Nay, the king of France has no right of alienating 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, in 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 prevention 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 considered as a trivial check, if, indeed, it was any; for the 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 happiness 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, 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 againtheir 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 supreme 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, show me that the king can go so far, and no farther, and I will show 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 electors, will attend to his 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 violated 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 President 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 powersGreat 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 cheeks 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 common 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 IV., 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.
Gov. 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 says that, if you place treaties on the same footing here as they are in England, he will consent to the 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, instituted 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 show 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 4th article of the Constitution secure against dismemberment? It provides that “nothing in this Constitution 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.