Posted on 09/08/2011 3:30:27 AM PDT by Jacquerie
Two Thirds Treaty Requirement. Lawful Officers. Impeachment. Supreme Court Trial. Money Bills & Appropriations. Oaths. Calling Congress into Session. Committee of Style. Hamilton & More Congressmen.
In Convention.
The last Report of [FN1] Committee of Eleven (see Sepr. 4) 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. Ghorum, that we were not fit for one Society.
A reconsideration of the whole clause was agreed to.
Mr. Govr. MORRIS was agst. 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 Govt. where there may be a majority of the States without a majority of the people. Eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace. There would be no danger, that the exposed States, as S. 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 agst. leaving the rights established by the Treaty of peace, to the Senate, & moved to annex a "proviso that no such rights shd. be ceded without the sanction of the Legislature.
Mr. Govr. MORRIS seconded the ideas of Mr. Sherman.
Mr. MADISON observed that it had been too easy in the present Congress to make Treaties altho' nine States were required for the purpose.
On the question for striking [FN2] "except Treaties of peace"
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. no. Md. no Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN3]
Mr. WILSON & Mr. DAYTON move to strike out the clause requiring two thirds of the Senate for making Treaties-on which,
N. H. no. Mas. no. Ct. divd. N. J. no. Pa. no Del. ay. Md. no. Va. no. N. C. no. S. C. no. Geo. no. [FN4]
Mr. RUTLIDGE & Mr. GERRY move that "no Treaty [FN5] be made without the consent of 2/3 of all the members of the Senate"-according to the example in the present Congs.
Mr. GHORUM. There is a difference in the case, as the President's consent will also be necessary in the new Govt.
On the question N. H. no. Mass. no. (Mr. Gerry ay) Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. ay. S. C. ay. Geo. ay. [FN6]
Mr. SHARMAN movd. that no Treaty [FN7] be made without a Majority of the whole number of the Senate. Mr. GERRY seconded him.
Mr. WILLIAMSON. This will be less security than 2/3 as now required . Mr. SHERMAN. It will be less embarrassing.
On the question, it passed in the negative. N. H. no. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. ay. Md. no. Va. no. N. C. no. S. C. ay. Geo. ay. [FN8]
Mr. MADISON movd. that a Quorum of the Senate consist of 2/3 of all the members.
Mr. Govr. 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
N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. ay. Va ay. N. C. ay. S. C. ay. Geo. ay. [FN9]
Mr. WILLIAMSON & Mr. GERRY, movd. "that no Treaty shd. be made witht. previous notice to the members, & a reasonable time for their attending."
On the Question
All the States no, except N. C. S. C. & Geo. ay.
On the question on [FN10] clause of the Report of the Come. of Eleven relating to Treaties by 2/3 of the Senate. All the States were ay-except Pa. N. J. & Geo. no.
Mr. GERRY movd. that no officer [FN7] be appd. but to offices created by the Constitution or by law"-This was rejected as unnecessary by six no's & five ays; [FN11]
The Ayes. Mas. Ct. N. J. N. C. Geo.-Noes. N. H. Pa.: Del. Md. Va. S. C. [FN12]
The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up. Col. MASON. Why is the provision restrained to Treason & 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 movd. 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. Govr. MORRIS, it will not be put in force & can do no harm. An election of every four years will prevent maladministration.
Col. MASON withdrew "maladministration" & substitutes "other high crimes & misdemesnors agst. the State"
On the question thus altered
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. [FN13] Geo. ay. [FN14]
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 misdemesnor. 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. Govr. 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 agst. 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. PINKNEY 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 agst. 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 [FN15] too much rigour 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" N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [FN16]
In the amendment of Col: Mason just agreed to, the word "State" after the words "misdemeanors against" was struck out, and the words "United States" inserted unanimously, [FN17] in order to remove ambiguity.
On the question to agree to [FN18] clause as amended N. H. ay. Mas. ay. Cont ay N. J. ay. Pa. no. Del ay Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN19]
On motion [FN20] "The vice-President and other Civil officers of the U. S. 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 5th. [FN15] Sepr. & 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 Massachussetts on the same subject- [FN21] "but the Senate may propose or concur with amendments as in other bills"-which was agreed too nem: con:
On the question On the first part of the clause-"All bills for raising revenue shall originate in the house of Representatives' [FN22]
N. H. ay. Mas. ay. Ct. ay. N. J. ay Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN24]
Mr. Govr. MORRIS moved to add to clause (3) [FN25] of the report made on Sepr. 4. [FN26] 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 U. S. 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"
N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [FN27]
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 herein [FN28] provided for," which was again negatived: Mas. Cont. & Geo. only being ay.
Mr. Me. HENRY observed that the President had not yet been any where authorised to convene the Senate, and moved to amend Art. X. sect. 2. by striking out the words "he may convene them [the Legislature] on extraordinary occasions" & insert "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 agst. the motion, because it implied that the senate might be in Session, when the Legislature was not, which he thought improper.
On the question N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. ay. [FN29]
A Committee was then appointed by Ballot to revise the stile of and arrange the articles which had been agreed to by the House. The committee consisted of Mr. Johnson, Mr. Hamilton, Mr. Govr. 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 shd. be reconsidered for the purpose of increasing the number.
Mr. MADISON 2ded. the Motion.
Mr. SHERMAN opposed it. he thought the provision on that subject amply sufficient.
Col: HAMILTON expressed himself with great earnestness and anxiety in favor of the motion. He avowed himself a friend to a vigorous Government, but would declare at the same time, that [FN30] 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 connection between the President & 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 of Mr. Williamson to reconsider, it was negatived [FN31]N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. no. [FN32]
Adjd.
FN1 The word "the" is here inserted in the transcript.
FN2 The word "out" is here inserted in the transcript.
FN3 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye-8; New Jersey, Delaware, Maryland, no-3."
FN4 In the transcript the vote reads: "Delaware, aye-1; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georiga, no-9; Connecticut, divided."
FN5 The word "shall" is here inserted in the transcript.
FN6 In the transcript the vote reads: "North Carolina, South Carolina, Georgia, aye-3; New Hampshire, Massachusetts (Mr. gerry, aye), Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, no-8."
FN7 The word "shall" is here inserted in the transcript.
FN8 In the transcript the vote reads: "Massachusetts, Connecticut, Delaware, South, Georiga, aye-5; New Hampshire, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, no-6."
FN9 In the transcript the vote reads: "Maryland, Virginia, North Carolina, South Carolina, Georgia, aye-5; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, no-6."
FN10 The word "the" is here inserted in the transcript.
FN11 The words "by six no's & five ayes" are stricken out in the transcript.
FN12 In the transcript the vote reads: "Massachusetts, Connecticut, New Jersey, North Carolina, Georiga, aye-5; New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, no-6."
FN13 In the printed Journal, S. Carolina-no.
FN14 In the transcript the vote reads' "New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina, [FN13] Georgia, aye-8; New Jersey, Pennsylvania, Delaware, no-3."
FN15 The word "of" is here inserted in the transcript.
FN16 In the transcript the vote reads: "Pennsylvania, Virginia, aye-2; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia, no-9."
FN17 The words "inserted unanimously" are transposed in the transcript to read "unanimously inserted."
FN18 The word "the" is here inserted in the transcript.
FN19 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye-10; Pennsylvania, no-1."
FN20 The words "the following" are here inserted in the transcript.
FN21 The word "viz" is here inserted in the transcript.
FN22 this was a conciliatory vote, the effect of the compromise formerly alluded to. See Note Wednesday Sepr. 5. [FN23]
FN23 The words "Wednesday, Sepr. 5," are stricken out in the transcript and "page -" is inserted in their place.
FN24 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye-9; Delaware, Maryland, no-2."
FN25 The words "the third clause" are substituted in the transcript for "clause (3)."
FN26 The words "the fourth of September" are substituted in the transcript for "Sepr. 4."
FN27 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, North Carolina, South Carolina, Georgia, aye-9; Pennsylvania, Virginia, no-2."
FN28 The word "heretofore" is substituted in the transcript for "herein."
FN29 In the transcript the vote reads: "New Hampshire, Connecticut, New Jersey, Delaware, Maryland, North Carolina, Georgia, aye-7; Massachusetts, Pennsylvania, Virginia, South Carolina, no-4."
FN30 The word "that" is omitted in the transcript.
FN31 This motion & vote are entered on the Printed journal of the ensuing morning.
FN32 In the transcript the vote reads: "Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye-5; New Hampshire, Massachusetts, Connecticut, New Jersey, South Carolina, Georgia, no-6."
James Wilson repeated Mr. Gorham’s admonition that we were not fit for one society if a simple majority cannot be trusted.
The entire clause would be reconsidered.
Governeur Morris opposed striking, "exception of Treaties of peace.” Congress would be reluctant to make war with such a high hurdle to make peace. If a majority of the Senate were not allowed to make peace, they would resort to withholding funds. (Mr. Morris also brought up the northeast fisheries and the Mississippi River, a continuing source of contention among the States.)
Hugh Williamson reminded the convention that treaties were to be made where a majority of States may represent a minority of people. Eight men could be a majority of a quorum to make peace. There was no reason for SC or GA to make war in the southwest.
James Wilson and Elbridge Gerry again expressed concern of minority control. They also feared foreign influence. (I do not understand why the clause required two thirds of the Senators present, rather than all. If anything invited foreign influence, this was it.)
Roger Sherman motioned, and Mr. Morris seconded leaving the rights established by the Treaty of peace, to the Senate, & moved to annex a "proviso that no such rights shd. be ceded without the sanction of the Legislature.
James Madison observed that yes, it had been too easy to enact treaties, although nine States were required.
Mr. King’s motion to strike the "exception of Treaties of peace" from the general clause requiring two thirds of the Senate for making Treaties, passed 8-3.
James Wilson and Jonathan Dayton (NJ) moved to strike the two thirds requirement for making treaties. It failed 9-1.
John Rutlidge and Elbridge Gerry moved to require "no Treaty be made without the consent of 2/3 of all the members of the Senate."
The motion failed 8-3. (Just like that. No debate?)
Roger Sherman motioned, and Mr. Gerry seconded to require a simple majority of the entire Senate for treaty ratification.
Hugh Williamson did not support less security from a simple majority.
Mr. Sherman’s motion failed narrowly, 6-5.
James Madison motioned to require two thirds of all members for a Senate quorum.
Hugh Williamson and Elbridge Gerry motioned "that no Treaty should be made without previous notice to the members, & a reasonable time for their attending."
It failed 8-3.
The final clause as reported from the committee, “But no Treaty shall be made without the consent of two thirds of the members present,” passed 8-3.
(The next one is interesting.)
Elbridge Gerry motioned that no officer be appointed to positions outside of those created by the Constitution or by other law. It was defeated as unnecessary. (Too bad this one got away)
Next, the impeachment clause, “'He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery.”
George Mason motioned and Mr. Gerry seconded, why impeachment for treason and bribery only? Treason will not reach many significant offenses. What of attempts to subvert the Constitution? He moved to add, “or maladministration” after bribery.
James Madison thought the term so indistinct as to allow the Senate to boot almost any President when it desired.
Governeur Morris did not think it would be put into effect and short four year terms will preclude maladministration anyway.
Mr. Mason withdrew “maladministration” to substitute, “other high crimes and misdemesnors against the State.”
The question put by Mr. Mason passed 7-4.
James Madison objected to a trial by the Senate, especially for any act that could be called a misdemesnor. He would prefer trial at the Supreme Court.
Governeur Morris thought the Scotus too few in number, and since they were nominated by the Executive . . . In part because the Presidential term was only four years, he discounted any possibility of untoward or unnecessary convictions.
Charles Pinckney disapproved trial by the Senate. Should the President veto a bill cherished by both houses, they could combine and boot him from office.
Hugh Williamson thought too much lenity in favor of the President would result. (The Clinton mess proved a democrat Senate will never convict a democrat President.) Roger Sherman also opposed Scotus impeachment trials due to their nominations by the President.
On Mr. Madison’s motion to remove, “by the Senate,” it failed 9-2.
The clause as amended, conviction for high crimes and misdemeanors passed, 10-1.
Conviction and removal from office for the Vice President and other civil officers on the same basis passed without opposition.
Next, “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."
The words, "and shall be subject to alterations and amendments by the Senate" were struck, and replaced with, "but the Senate may propose or concur with amendments as in other bills,” which passed without opposition.
On the first part of the clause, "All bills for raising revenue shall originate in the house of Representatives,” passed 9-2.
Governeur Morris motioned to amend a previous clause agreed to, to read, “The Senate of the U. S. 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," which passed 9-2
Elbridge Gerry motioned once again, "The Legislature shall have the sole right of establishing offices not herein provided for," which failed again, 8-3.
James McHenry (MD) motioned to add to a previous section, "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.
James Wilson would not agree to it; to have one house alone in session without the other.
Mr. McHenry’s motion passed 7-4.
A committee of style was appointed by ballot to arrange the agreed to Articles, Mr. Johnson, Mr. Hamilton, Mr. Govr. Morris, Mr. Madison and Mr. King.
(Governeur Morris was another, “Who’s he?” of the Convention. He should be far better known. In addition to active participation throughout, he was recognized as leader of the Committee of Style, and largely credited with the careful elegance, and precision of our beloved Constitution.) Hugh Williamson motioned to first reconsider the number of members to the House of Representatives. Mr. Madison seconded.
Roger Sherman opposed; the topic had been well debated.
Alexander Hamilton (NY) strongly supported the motion. While in favor of vigorous government, he thought it should be based on a wide foundation of the people. He thought the House of Reps on too narrow a base as to be dangerous to the liberties of the people. The relationship between the Senate and President was far too close; a more populous House of Reps was needed.
Mr. Williamson’s motion failed, 6-5.
Adjourned.
A potential crisis that hung over the Convention, in fact, one of the reasons for the Convention itself was a pending treaty with Spain. The (John) Jay-Gardoqui Treaty would have traded commercial advantage to the Northern States in exchange for a 25 year closure of the Mississippi River, to the detriment of the South. The foreign policy of Spain v. the US was one of containment, and standing fast against agricultural interests of the South was one way to promote it.
Northern shipping by 1787 had been demoralized by war and economic depression for over ten years. American merchants not only did not have the protection of restrictive British Navigation laws and the Royal Navy, all British ports including the West Indies were closed to us. British ships, OTOH carried the agricultural exports of the South as well as those of NJ and CN. Our Confederation government did not have the power to regulate commerce nor enact Navigation Laws. Northern carrying interests by 1787 had become desperate.
Southern eyes instead turned westward. Settlers from all States were emigrating to lands that would become KY, TN, AL, MS. Their long term prosperity ultimately depended on ports to export their products. Spain had closed New Orleans to Americans only recently, in 1784, which accelerated the widespread economic depression.
The trigger that nearly dissolved the Confederation was a Congressional vote on August 30th 1786. On the vote of seven states, John Jay was instructed to give away rights to the Mississippi if he deemed it necessary to conclude the treaty. James Monroe, VA delegate to Congress, warned, “Jay and his party are determined to pursue this business as far as possible, either as a means of throwing the western people and territory without the government of the US and keeping the weight of population and government here, or of dismembering the government itself for the purpose of a separate confederacy.”
The economic situation was so awful that one half of the country had acquiesced to betray the other. It was in the shadow of this hostile background of distrust, our Framers sat down less than a year later to craft our Constitution. It was remarkable they met at all, and what they produced was just short of a Miracle.
A question of Treaties? — I was taught in public school-and If I was paying attention that day— I seems to recollect that “treaties” were made to allow for our Govt. to do business with foreign states—as such—Americans ought not be overly concerned as “treaties had little affect on us as citizens. It seems our government has -at some point -begun to use “treaties” to shape American Law-to make US more like those foreign States our Govt. does business with. If true how can this be reversed?
On another subject I can’t wait for the four year mark to be rid of this President that has committed so many attempt to subvert and change our Constitution he should have been denied Office. But The Senate supports their President.
And last we so agree about Mr.Morris- he does deserve more attention —and finding his legacy seems to be made more difficult by the keepers of the texts.
I don't see how it can be reversed.
There is no question, if given another four years, Hussein and his rodent Senate would reduce the US to serfdom under the UN.
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