Saturday, September 8 | Debates in the Federal Convention of 1787
by James Madison
In Convention, — The last Report of the Committee of Eleven (see the fourth of September) was resumed.
Mr. KING moved to strike out the exception of treaties of peace, from the general clause requiring two thirds of the Senate for making treaties.
Mr. WILSON wished the requisition of two thirds to be struck out altogether. If the majority cannot be trusted, it was a proof, as observed by Mr. GORHAM, that we were not fit for one society.
A reconsideration of the whole clause was agreed to.
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. Besides, if a majority of the Senate be for peace, and are not allowed to make it, they will be apt to effect 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 people. Eight men may be a majority 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 leaving 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.
On the question for striking out “except treaties of peace,”—
New Hampshire, Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye, — 8; New Jersey, Delaware, Maryland, no, — 3.
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, Massachusetts, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, — 9; Connecticut, divided.
Mr. RUTLEDGE and Mr. GERRY moved that, “no treaty shall be made without the consent of two thirds 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.
On the question, — North Carolina, South Carolina, Georgia, aye, — 3; New Hampshire, Massachusetts, (Mr. GERRY, aye,) Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, no, — 8.
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.
Mr. SHERMAN. It will be less embarrassing.
On the question, it passed in the negative, —
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 two thirds of all the members.
Mr. GOUVERNEUR MORRIS. This will put it in the power of one man to break up a quorum.
Mr. MADISON, This may happen to any quorum.
On the question, it passed in the negative, —
Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 5; New Hampshire, Massachusetts, 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 States, no; except North Carolina, South Carolina, and Georgia, aye.
On the question on the clause of the Report of the Committee of eleven, relating to treaties by two thirds 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, —
Massachusetts, Connecticut, New Jersey, North Carolina, Georgia, aye, — 5; New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, no, — 6.
The clause referring to the Senate the trial of impeachments against the President, for treason and bribery, was taken up.
Colonel MASON. Why is the provision restrained to treason and bribery only? Treason, as defined in the Constitution, will not reach many great and dangerous offences. Hastings is not guilty of treason. Attempts to subvert the Constitution may not be treason, as above defined. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachments. He moved to add, after “bribery,” “or maladministration.”
Mr. GERRY seconded him.
Mr. MADISON So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr. GOUVERNEUR MORRIS. It will not be put in force, and can do no harm. An election of every four years, will prevent maladministration.
Colonel MASON withdrew “maladministration”; and substituted, “other high crimes and misdemeanors against the State.”
On the question, thus altered, —
New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina1 , Georgia, aye, — 8; New Jersey, Pennsylvania, Delaware, no, — 3.
Mr. MADISON objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature; and for any act which might be called a misdemeanor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments; or, rather, a tribunal of which that should form a part.
Mr. GOUVERNEUR MORRIS thought no other tribunal than the Senate could be trusted. The Supreme Court were too few in number, and might be warped or corrupted. He was against a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly, on their oaths, that the President was guilty of crimes or facts, especially as in four years he can be turned out.
Mr. PINCKNEY disapproved of making the Senate the court of impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine against him, and under the influence of heat and faction throw him out of office.
Mr. WILLIAMSON thought there was more danger of too much lenity, than of too much rigor, towards the President, considering the number of cases in which the Senate was associated with the President.
Mr. SHERMAN regarded the Supreme Court as improper to try the President, because the judges would be appointed by him.
On motion by Mr. MADISON, to strike out the words, “by the Senate,” after the word “conviction,” —
Pennsylvania, Virginia, aye, — 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia, no, — 9.
In the amendment of Colonel MASON, just agreed to, the word “State,” after the words, “misdemeanors against,” was struck out; and the words, “United States” unanimously inserted, in order to remove ambiguity.
On the question to agree to the clause as amended, — New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 10; Pennsylvania, no, — 1.
On motion, the following: “The Vice President, and other civil officers of the United States shall be removed from office on impeachment and conviction, as aforesaid,” was added to the clause on the subject of impeachments.
The clause of the Report made on the fifth of September, and postponed, was taken up, to wit: “All bills for raising revenue shall originate in the House of Representatives; and shall be subject to alterations and amendments by the Senate. No money shall be drawn from the Treasury but in consequence of appropriations made by law.”
It was moved to strike out the words, “and shall be subject to alterations and amendments by the Senate;” and insert the words used in the constitution of Massachusetts on the same subject, viz: “but the Senate may propose or concur with amendments, as in other bills;” which was agreed to, nem. con.
On the question on the first part of the clause, “all bills for raising revenue shall originate in the House of Representatives,”2 —
New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye, — 9; Delaware, Maryland, no, — 2.
Mr. GOUVERNEUR MORRIS moved to add to the third clause of the Report made on the fourth of September, the words, “and every member shall be on oath;” which being agreed to, and a question taken on the clause, so amended, viz: “The Senate of the United States shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath,” —
New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia, aye, — 9; Pennsylvania, Virginia, no, — 2.
Mr. GERRY repeated his motion above made, on this day, in the form following: “The Legislature shall have the sole right of establishing offices not heretofore provided for;” which was again negatived, — Massachusetts, Connecticut, and Georgia, only, being aye.
Mr. McHENRY observed, that the President had not yet been any where authorized to convene the Senate, and moved to amend Article 10, Section 2, by striking out the words, “He may convene them [the Legislature] on extraordinary occasions;” and inserting, “He may convene both, or either of the Houses on extraordinary occasions.” This, he added, would also provide for the case of the Senate being in session at the time of convening the Legislature.
Mr. WILSON said he should vote against the motion, because it implied that the Senate might be in session when the Legislature was not, which he thought improper.
On the question, — New Hampshire, Connecticut, New Jersey, Delaware, Maryland, North Carolina, Georgia, aye, — 7; Massachusetts, Pennsylvania, Virginia, South Carolina, no, — 4.
A committee was then appointed by ballot to revise the style of, and arrange, the articles which had been agreed to by the House. The Committee consisted of Mr. JOHNSON, Mr. HAMILTON, Mr. GOUVERNEUR MORRIS, Mr. MADISON and Mr. KING.
Mr. WILLIAMSON moved, that, previous to this work of the Committee, the clause relating to the number of the House of Representatives should be reconsidered, for the purpose of increasing the number.
Mr. MADISON seconded the motion.
Mr. SHERMAN opposed it. He thought the provision on that subject amply sufficient.
Colonel HAMILTON expressed himself with great earnestness and anxiety in favour of the motion. He avowed himself a friend to a vigorous government, but would declare at the same time, he held it essential that the popular branch of it should be on a broad foundation. He was seriously of opinion, that the House of Representatives was on so narrow a scale, as to be really dangerous, and to warrant a jealousy in the people for their liberties. He remarked, that the connexion between the President and Senate would tend to perpetuate him, by corrupt influence. It was the more necessary on this account that a numerous representation in the other branch of the legislature should be established.
On the motion Mr. WILLIAMSON to reconsider, it was negatived,3 —
Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye, — 5; New Hampshire, Massachusetts, Connecticut, New Jersey, South Carolina, Georgia, no, — 6.
Adjourned.
1 In the printed Journal, S. Carolina-no.
2 this was a conciliatory vote, the effect of the compromise formerly alluded to. See Note Wednesday Sepr. 5.
3 This motion & vote are entered on the Printed journal of the ensuing morning.