Article 2, Section 2, Clauses 2 and 3
Debate in North Carolina Ratifying Convention24, 28 July 1788Elliot 4:27--28, 115--34
Mr. Lenoir. Mr. Chairman, I have a greater objection on this ground than that which has just been mentioned. I mean, sir, the legislative power given to the President himself. It may be admired by some, but not by me. He, sir, with the Senate, is to make treaties, which are to be the supreme law of the land. This is a legislative power given to the President, and implies a contradiction to that part which says that all legislative power is vested in the two houses.
Mr. Spaight answered, that it was thought better to put that power into the hands of the senators as representatives of the states--that thereby the interest of every state was equally attended to in the formation of treaties--but that it was not considered as a legislative act at all.
Mr. Iredell. Mr. Chairman, this is an objection against the inaccuracy of the sentence. I humbly conceive it will appear accurate on a due attention. After a bill is passed by both houses, it is to be shown to the President. Within a certain time, he is to return it. If he disapproves of it, he is to state his objections in writing; and it depends on Congress afterwards to say whether it shall be a law or not. Now, sir, I humbly apprehend that, whether a law passes by a bare majority, or by two thirds, (which are required to concur after he shall have stated objections,) what gives active operation to it is, the will of the senators and representatives. The President has no power of legislation. If he does not object, the law passes by a bare majority; and if he objects, it passes by two thirds. His power extends only to cause it to be reconsidered, which secures a greater probability of its being good. As to his power with respect to treaties, I shall offer my sentiments on it when we come properly to it.
Mr. Maclaine intimated, that if any gentleman was out of order, it was the gentleman from Wilkes (Mr. Lenoir)-- that treaties were the supreme law of the land in all countries, for the most obvious reasons--that laws, or legislative acts, operated upon individuals, but that treaties acted upon states--that, unless they were the supreme law of the land, they could have no validity at all--that the President did not act in this case as a legislator, but rather in his executive capacity.
Mr. Lenoir replied that he wished to be conformable to the rules of the house; but he still thought the President was possessed of legislative powers, while he could make treaties, joined with the Senate.
Mr. Iredell. Mr. Chairman, I think the gentleman is in order. When treaties are made, they become as valid as legislative acts. I apprehend that every act of the government, legislative, executive, or judicial, if in pursuance of a constitutional power, is the law of the land. These different acts become the acts of the state by the instrumentality of its officers. When, for instance, the governor of this state grants a pardon, it becomes the law of the land, and is valid. Every thing is the law of the land, let it come from what power it will, provided it be consistent with the Constitution.
Mr. Lenoir answered, that that comparison did not hold.
Mr. Iredell continued. If the governor grants a pardon, it becomes a law of the land. Why? Because he has power to grant pardons by the Constitution. Suppose this Constitution is adopted, and a treaty made; that treaty is the law of the land. Why? Because the Constitution grants the power of making treaties.
Mr. Porter. Mr. Chairman, there is a power vested in the Senate and President to make treaties, which shall be the supreme law of the land. Which among us can call them to account? I always thought that there could be no proper exercise of power without the suffrage of the people; yet the House of Representatives has no power to intermeddle with treaties. The President and seven senators, as nearly as I can remember, can make a treaty which will be of great advantage to the Northern States, and equal injury to the Southern States. They might give up the rivers and territory of the Southern States. Yet, in the preamble of the Constitution, they say all the people have done it. I should be glad to know what power there is of calling the President and Senate to account.
Mr. Spaight answered that, under the Confederation, two thirds of the states might make treaties; that, if the senators from all the states attended when a treaty was about to be made, two thirds of the states would have a voice in its formation. He added, that he would be glad to ask the gentleman what mode there was of calling the present Congress to account.
Mr. Porter repeated his objection. He hoped that gentlemen would not impose on the house; that the President could make treaties with two thirds of the senate; that the President, in that case, voted rather in a legislative than in an executive capacity, which he thought impolitic.
Gov. Johnston. Mr. Chairman, in my opinion, if there be any difference between this Constitution and the Confederation, with respect to treaties, the Constitution is more safe than the Confederation. We know that two members from each state have a right, by the Confederation, to give the vote of that state, and two thirds of the states have a right also to make treaties. By this Constitution, two thirds of the senators cannot make treaties without the concurrence of the President. Here is, then, an additional guard. The calculation that seven or eight senators, with the President, can make treaties, is totally erroneous. Fourteen is a quorum; two thirds of which are ten. It is upon the improbable supposition that they will not attend, that the objection is founded that ten men, with the President, can make treaties. Can it be reasonably supposed that they will not attend when the most important business is agitated--when the interests of their respective states are most immediately affected?
. . . . .
Mr. Spencer. Mr. Chairman, I rise to declare my disapprobation of this, likewise. It is an essential article in our Constitution, that the legislative, the executive, and the supreme judicial powers, of government, ought to be forever separate and distinct from each other. The Senate, in the proposed government of the United States, are possessed of the legislative authority in conjunction with the House of Representatives. They are likewise possessed of the sole power of trying all impeachments, which, not being restrained to the officers of the United States, may be intended to include all the officers of the several states in the Union. And by this clause they possess the chief of the executive power; they are, in effect, to form treaties, which are to be the law of the land; and they have obviously, in effect, the appointment of all the officers of the United States. The President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed. He will be obliged, finally, to acquiesce in the appointment of those whom the Senate shall nominate, or else no appointment will take place. Hence it is easy to perceive that the President, in order to do any business, or to answer any purpose in this department of his office, and to keep himself out of perpetual hot water, will be under a necessity to form a connection with that powerful body, and be contented to put himself at the head of the leading members who compose it. I do not expect, at this day, that the outline and organization of this proposed government will be materially altered. But I cannot but be of opinion that the government would have been infinitely better and more secure, if the President had been provided with a standing council, composed of one member from each of the states, the duration of whose office might have been the same as that of the President's office, or for any other period that might have been thought more proper; for it can hardly be supposed, if two senators can be sent from each state, who are fit to give counsel to the President, that one such cannot be found in each state qualified for that purpose. Upon this plan, one half the expense of the Senate, as a standing council to the President in the recess of Congress, would evidently be saved; each state would have equal weight in this council, as it has now in the Senate. And what renders this plan the more eligible is, that two very important consequences would result from it, which cannot result from the present plan. The first is, that the whole executive department, being separate and distinct from that of the legislative and judicial, would be amenable to the justice of the land: the President and his council, or either or any of them, might be impeached, tried, and condemned, for any misdemeanor in office. Whereas, on the present plan proposed, the Senate, who are to advise the President, and who, in effect, are possessed of the chief executive powers, let their conduct be what it will, are not amenable to the public justice of their country: if they may be impeached, there is no tribunal invested with jurisdiction to try them. It is true that the proposed Constitution provides that, when the President is tried, the chief justice shall preside. But I take this to be very little more than a farce. What can the Senate try him for? For doing that which they have advised him to do, and which, without their advice, he would not have done. Except what he may do in a military capacity--when, I presume, he will be entitled to be tried by a court martial of general officers--he can do nothing in the executive department without the advice of the Senate, unless it be to grant pardons, and adjourn the two Houses of Congress to some day to which they cannot agree to adjourn themselves--probably to some term that may be convenient to the leading members of the Senate.
I cannot conceive, therefore, that the President can ever be tried by the Senate with any effect, or to any purpose for any misdemeanor in his office, unless it should extend to high treason, or unless they should wish to fix the odium of any measure on him, in order to exculpate themselves; the latter of which I cannot suppose will ever happen.
Another important consequence of the plan I wish had taken place is that, the office of the President being thereby unconnected with that of the legislative, as well as the judicial, he would have that independence which is necessary to form the intended check upon the acts passed by the legislature before they obtain the sanction of laws. But, on the present plan, from the necessary connection of the President's office with that of the Senate, I have little ground to hope that his firmness will long prevail against the overbearing power and influence of the Senate, so far as to answer the purpose of any considerable check upon the acts they may think proper to pass in conjunction with the House of Representatives; for he will soon find that, unless he inclines to compound with them, they can easily hinder and control him in the principal articles of his office. But, if nothing else could be said in favor of the plan of a standing council to the President, independent of the Senate, the dividing the power of the latter would be sufficient to recommend it; it being of the utmost importance towards the security of the government, and the liberties of the citizens under it. For I think it must be obvious to every unprejudiced mind, that the combining in the Senate the power of legislation, with a controlling share in the appointment of all the officers of the United States, (except those chosen by the people,) and the power of trying all impeachments that may be found against such officers, invests the Senate at once with such an enormity of power, and with such an overbearing and uncontrollable influence, as is incompatible with every idea of safety to the liberties of a free country, and is calculated to swallow up all other powers, and to render that body a despotic aristocracy.
Mr. Porter recommended the most serious consideration when they were about to give away power; that they were not only about to give away power to legislate or make laws of a supreme nature, and to make treaties, which might sacrifice the most valuable interests of the community, but to give a power to the general government to drag the inhabitants to any part of the world as long as they pleased; that they ought not to put it in the power of any man, or any set of men, to do so; and that the representation was defective, being not a substantial, immediate representation. He observed that, as treaties were the supreme law of the land, the House of Representatives ought to have a vote in making them, as well as in passing them.
Mr. J. M'Dowall. Mr. Chairman: permit me, sir, to make a few observations, to show how improper it is to place so much power in so few men, without any responsibility whatever. Let us consider what number of them is necessary to transact the most important business. Two thirds of the members present, with the President, can make a treaty. Fourteen of them are a quorum, two thirds of which are ten. These ten may make treaties and alliances. They may involve us in any difficulties, and dispose of us in any manner, they please. Nay, eight is a majority of a quorum, and can do every thing but make treaties. How unsafe are we, when we have no power of bringing those to an account! It is absurd to try them before their own body. Our lives and property are in the hands of eight or nine men. Will these gentlemen intrust their rights in this manner?
Mr. Davie. Mr. Chairman, although treaties are mere conventional acts between the contracting parties, yet, by the law of nations, they are the supreme law of the land to their respective citizens or subjects. All civilized nations have concurred in considering them as paramount to an ordinary act of legislation. This concurrence is founded on the reciprocal convenience and solid advantages arising from it. A due observance of treaties makes nations more friendly to each other, and is the only means of rendering less frequent those mutual hostilities which tend to depopulate and ruin contending nations. It extends and facilitates that commercial intercourse, which, founded on the universal protection of private property, has, in a measure, made the world one nation.
The power of making treaties has, in all countries and governments, been placed in the executive departments. This has not only been grounded on the necessity and reason arising from that degree of secrecy, design, and despatch, which is always necessary in negotiations between nations, but to prevent their being impeded, or carried into effect, by the violence, animosity, and heat of parties, which too often infect numerous bodies. Both of these reasons preponderated in the foundation of this part of the system. It is true, sir, that the late treaty between the United States and Great Britain has not, in some of the states, been held as the supreme law of the land. Even in this state, an act of Assembly passed to declare its validity. But no doubt that treaty was the supreme law of the land without the sanction of the Assembly; because, by the Confederation, Congress had power to make treaties. It was one of those original rights of sovereignty which were vested in them; and it was not the deficiency of constitutional authority in Congress to make treaties that produced the necessity of a law to declare their validity; but it was owing to the entire imbecility of the Confederation.
On the principle of the propriety of vesting this power in the executive department, it would seem that the whole power of making treaties ought to be left to the President, who, being elected by the people of the United States at large, will have their general interest at heart. But that jealousy of executive power which has shown itself so strongly in all the American governments, would not admit this improvement. Interest, sir, has a most powerful influence over the human mind, and is the basis on which all the transactions of mankind are built. It was mentioned before that the extreme jealousy of the little states, and between the commercial states and the non-importing states, produced the necessity of giving an equality of suffrage to the Senate. The same causes made it indispensable to give to the senators, as representatives of states, the power of making, or rather ratifying, treaties. Although it militates against every idea of just proportion that the little state of Rhode Island should have the same suffrage with Virginia, or the great commonwealth of Massachusetts, yet the small states would not consent to confederate without an equal voice in the formation of treaties. Without the equality, they apprehended that their interest would be neglected or sacrificed in negotiations. This difficulty could not be got over. It arose from the unalterable nature of things. Every man was convinced of the inflexibility of the little states in this point. It therefore became necessary to give them an absolute equality in making treaties.
The learned gentleman on my right, (Mr. Spencer,) after saying that this was an enormous power, and that blending the different branches of government was dangerous, said, that such accumulated powers were inadmissible, and contrary to all the maxims of writers. It is true, the great Montesquieu, and several other writers, have laid it down as a maxim not to be departed from, that the legislative, executive, and judicial powers should be separate and distinct. But the idea that these gentlemen had in view has been misconceived or misrepresented. An absolute and complete separation is not meant by them. It is impossible to form a government upon these principles. Those states who had made an absolute separation of these three powers their leading principle, have been obliged to depart from it. It is a principle, in fact, which is not to be found in any of the state governments. In the government of New York, the executive and judiciary have a negative similar to that of the President of the United States. This is a junction of all the three powers, and has been attended with the most happy effects. In this state, and most of the others, the executive and judicial powers are dependent on the legislature. Has not the legislature of this state the power of appointing the judges? Is it not in their power also to fix their compensation? What independence can there be in persons who are obliged to be obsequious and cringing for their office and salary? Are not our judges dependent on the legislature for every morsel they eat? It is not difficult to discern what effect this may have on human nature. The meaning of this maxim I take to be this--that the whole legislative, executive, and judicial powers should not be exclusively blended in any one particular instance. The Senate try impeachments. This is their only judicial cognizance. As to the ordinary objects of a judiciary--such as the decision of controversies, the trial of criminals, &c.--the judiciary is perfectly separate and distinct from the legislative and executive branches. The House of Lords, in England, have great judicial powers; yet this is not considered as a blemish in their constitution. Why? Because they have not the whole legislative power. Montesquieu, at the same time that he laid down this maxim, was writing in praise of the British government. At the very time he recommended this distinction of powers, he passed the highest eulogium on a constitution wherein they were all partially blended. So that the meaning of the maxim, as laid down by him and other writers, must be, that these three branches must not be entirely blended in one body. And this system before you comes up to the maxim more completely than the favorite government of Montesquieu. The gentleman from Anson has said that the Senate destroys the independence of the President, because they must confirm the nomination of officers. The necessity of their interfering in the appointment of officers resulted from the same reason which produced the equality of suffrage. In other countries, the executive or chief magistrate, alone, nominates and appoints officers. The small states would not agree that the House of Representatives should have a voice in the appointment to offices; and the extreme jealousy of all the states would not give it to the President alone. In my opinion, it is more proper as it is than it would be in either of those cases. The interest of each state will be equally attended to in appointments, and the choice will be more judicious by the junction of the Senate to the President. Except in the appointments of officers, and making of treaties, he is not joined with them in any instance. He is perfectly independent of them in his election. It is impossible for human ingenuity to devise any mode of election better calculated to exclude undue influence. He is chosen by the electors appointed by the people. He is elected on the same day in every state, so that there can be no possible combination between the electors. The affections of the people can be the only influence to procure his election. If he makes a judicious nomination, is it to be presumed that the Senate will not concur in it? Is it to be supposed the legislatures will choose the most depraved men in the states to represent them in Congress? Should he nominate unworthy characters, can it be reasonably concluded that they will confirm it? He then says that the senators will have influence to get themselves reëlected; nay, that they will be perpetually elected.
I have very little apprehension on this ground. I take it for granted that the man who is once a senator will very probably be out for the next six years. Legislative influence changes. Other persons rise, who have particular connections to advance them to office. If the senators stay six years out of the state governments, their influence will be greatly diminished. It will be impossible for the most influential character to get himself reëlected after being out of the country so long. There will be an entire change in six years. Such futile objections, I fear, proceed from an aversion to any general system. The same learned gentleman says that it would be better, were a council, consisting of one from every state, substituted to the Senate. Another gentleman has objected to the smallness of this number. This shows the impossibility of satisfying all men's minds. I beg this committee to place these two objections together, and see their glaring inconsistency. If there were thirteen counsellors, in the manner he proposes, it would destroy the responsibility of the President. He must have acted also with a majority of them. A majority of them is seven, which would be a quorum. A majority of these would be four, and every act to which the concurrence of the Senate and the President is necessary could be decided by these four. Nay, less than a majority--even one--would suffice to enable them to do the most important acts. This, sir, would be the effect of this council. The dearest interests of the community would be trusted to two men. Had this been the case, the loudest clamors would have been raised, with justice, against the Constitution, and these gentlemen would have loaded their own proposition with the most virulent abuse.
On a due consideration of this clause, it appears that this power could not have been lodged as safely any where else as where it is. The honorable gentleman (Mr. M'Dowall) has spoken of a consolidation in this government. That is a very strange inconsistency, when he points out, at the same time, the necessity of lodging the power of making treaties with the representatives, where the idea of a consolidation can alone exist; and when he objects to placing it in the Senate, where the federal principle is completely preserved. As the Senate represents the sovereignty of the states, whatever might affect the states in their political capacity ought to be left to them. This is the certain means of preventing a consolidation. How extremely absurd is it to call that disposition of power a consolidation of the states, which must to all eternity prevent it! I have only to add the principle upon which the General Convention went--that the power of making treaties could nowhere be so safely lodged as in the President and Senate; and the extreme jealousy subsisting between some of the states would not admit of it elsewhere. If any man will examine the operation of that jealousy, in his own breast, as a citizen of North Carolina, he will soon feel the inflexibility that results from it, and perhaps be induced to acknowledge the propriety of this arrangement.
Mr. M'Dowall declared, that he was of the same opinion as before, and that he believed the observations which the gentleman had made, on the apparent inconsistency of his remarks, would have very little weight with the committee; that giving such extensive powers to so few men in the Senate was extremely dangerous; and that he was not the more reconciled to it from its being brought about by the inflexibility of the small, pitiful states to the north. He supposed that eight members in the Senate from those states, with the President, might do the most important acts.
Mr. Spaight. Mr. Chairman, the gentleman objects to the smallness of the number, and to their want of responsibility. He argues as if the senators were never to attend, and as if the northern senators were to attend more regularly than those from the south. Nothing can be more unreasonable than to suppose that they will be absent on the most important occasions. What responsibility is there in the present Congress that is not in the Senate? What responsibility is there in our state legislature? The senators are as responsible as the members of our legislature. It is to be observed, that though the senators are not impeachable, yet the President is. He may be impeached and punished for giving his consent to a treaty, whereby the interest of the community is manifestly sacrificed.
Mr. Spencer. Mr. Chairman, the worthy gentleman from Halifax has endeavored to obviate my objections against the want of responsibility in the President and senators, and against the extent of their power. He has not removed my objections. It is totally out of their power to show any degree of responsibility. The executive is tried by his advisers. The reasons I urged are so cogent and strong with me, that I cannot approve of this clause. I can see nothing of any weight against them. [Here Mr. Spencer spoke so low that he could not distinctly be heard.] I would not give the President and senators power to make treaties, because it destroys their responsibility. If a bad treaty be made, and he impeached for it, the Senate will not pronounce sentence against him, because they advised him to make it. If they had legislative power only, it would be unexceptionable; but when they have the appointment of officers, and such extensive executive powers, it gives them such weight as is inadmissible. Notwithstanding what gentlemen have said in defence of the clause, the influence of the Senate still remains equally formidable to me. The President can do nothing unless they concur with him. In order to obtain their concurrence, he will compromise with them. Had there been such a council as I mentioned, to advise him, the Senate would not have had such dangerous influence, and the responsibility of the President would have been secured. This seems obviously clear to be the case.
Mr. Porter. Mr. Chairman, I only rise to make one observation on what the gentleman has said. He told us, that if the Senate were not amenable, the President was. I beg leave to ask the gentleman if it be not inconsistent that they should punish the President, whom they advised themselves to do what he is impeached for. My objection still remains. I cannot find it in the least obviated.
Mr. Bloodworth desired to be informed whether treaties were not to be submitted to the Parliament in Great Britain before they were valid.
Mr. Iredell. Mr. Chairman, the objections to this clause deserve great consideration. I believe it will be easy to obviate the objections against it, and that it will be found to have been necessary, for the reasons stated by the gentleman from Halifax, to vest this power in some body composed of representatives of states, where their voices should be equal; for in this case the sovereignty of the states is particularly concerned, and the great caution of giving the states an equality of suffrage in making treaties, was for the express purpose of taking care of that sovereignty, and attending to their interests, as political bodies, in foreign negotiations. It is objected to as improper, because, if the President or Senate should abuse their trust, there is not sufficient responsibility, since he can only be tried by the Senate, by whose advice he acted; and the Senate cannot be tried at all. I beg leave to observe that, when any man is impeached, it must be for an error of the heart, and not of the head. God forbid that a man, in any country in the world, should be liable to be punished for want of judgment. This is not the case here. As to errors of the heart, there is sufficient responsibility. Should these be committed, there is a ready way to bring him to punishment. This is a responsibility which answers every purpose that could be desired by a people jealous of their liberty. I presume that, if the President, with the advice of the Senate, should make a treaty with a foreign power, and that treaty should be deemed unwise, or against the interest of the country, yet if nothing could be objected against it but the difference of opinion between them and their constituents, they could not justly be obnoxious to punishment. If they were punishable for exercising their own judgment, and not that of their constituents, no man who regarded his reputation would accept the office either of a senator or President. Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous. But if a man be a villain, and wilfully abuse his trust, he is to be held up as a public offender, and ignominiously punished. A public officer ought not to act from a principle of fear. Were he punishable for want of judgment, he would be continually in dread; but when he knows that nothing but real guilt can disgrace him, he may do his duty firmly, if he be an honest man; and if he be not, a just fear of disgrace may, perhaps, as to the public, have nearly the effect of an intrinsic principle of virtue. According to these principles, I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other. If the President had received a bribe, without the privity or knowledge of the Senate, from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty,--if it appeared afterwards that this was the case, would not that Senate be as competent to try him as any other persons whatsoever? Would they not exclaim against his villany? Would they not feel a particular resentment against him, for being made the instrument of his treacherous purposes? In this situation, if any objection could be made against the Senate as a proper tribunal, it might more properly be made by the President himself, lest their resentment should operate too strongly, rather than by the public, on the ground of a supposed partiality. The President must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives. If it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them,--in this case, I ask whether, upon an impeachment for a misdemeanor upon such an account, the Senate would probably favor him. With respect to the impeachability of the Senate, that is a matter of doubt.
There have been no instances of impeachment for legislative misdemeanors; and we shall find, upon examination, that the inconveniences resulting from such impeachments would more than preponderate the advantages. There is no greater honor in the world than being the representative of a free people. There is no trust on which the happiness of the people has a greater dependence. Yet who ever heard of impeaching a member of the legislature for any legislative misconduct? It would be a great check on the public business, if a member of the Assembly was liable to punishment for his conduct as such. Unfortunately, it is the case, not only in other countries, but even in this, that division and differences in opinion will continually arise. On many questions there will be two or more parties. These often judge with little charity of each other, and attribute every opposition to their own system to an ill motive. We know this very well from experience; but, in my opinion, this constant suspicion is frequently unjust. I believe, in general, both parties really think themselves right, and that the majority of each commonly act with equal innocence of intention. But, with the usual want of charity in these cases, how dangerous would it be to make a member of the legislature liable to impeachment! A mere difference of opinion might be interpreted, by the malignity of party, into a deliberate, wicked action.
It therefore appears to me at least very doubtful whether it would be proper to render the Senate impeachable at all; especially as, in the branches of executive government, where their concurrence is required, the President is the primary agent, and plainly responsible, and they, in fact, are but a council to validate proper, or restrain improper, conduct in him; but if a senator is impeachable, it could only be for corruption, or some other wicked motive, in which case, surely those senators who had acted from upright motives would be competent to try him. Suppose there had been such a council as was proposed, consisting of thirteen, one from each state, to assist the President in making treaties, &c.; more general alarm would have been excited, and stronger opposition made to this Constitution, than even at present. The power of the President would have appeared more formidable, and the states would have lost one half of their security; since, instead of two representatives, which each has now for those purposes, they would have had but one. A gentleman from New Hanover has asked whether it is not the practice, in Great Britain, to submit treaties to Parliament, before they are esteemed as valid. The king has the sole authority, by the laws of that country, to make treaties. After treaties are made, they are frequently discussed in the two houses, where, of late years, the most important measures of government have been narrowly examined. It is usual to move for an address of approbation; and such has been the complaisance of Parliament for a long time, that this seldom hath been withheld. Sometimes they pass an act in conformity to the treaty made; but this, I believe, is not for the mere purpose of confirmation, but to make alterations in a particular system, which the change of circumstances requires. The constitutional power of making treaties is vested in the crown; and the power with whom a treaty is made considers it as binding, without any act of Parliament, unless an alteration by such is provided for in the treaty itself, which I believe is sometimes the case. When the treaty of peace was made in 1763, it contained stipulations for the surrender of some islands to the French. The islands were given up, I believe, without any act of Parliament. The power of making treaties is very important, and must be vested somewhere, in order to counteract the dangerous designs of other countries, and to be able to terminate a war when it is begun. Were it known that our government was weak, two or more European powers might combine against us. Would it not be politic to have some power in this country, to obviate this danger by a treaty? If this power was injudiciously limited, the nations where the power was possessed without restriction would have greatly the advantage of us in negotiation; and every one must know, according to modern policy, of what moment an advantage in negotiation is. The honorable member from Anson said that the accumulation of all the different branches of power in the Senate would be dangerous. The experience of other countries shows that this fear is without foundation. What is the Senate of Great Britain opposed to the House of Commons, although it be composed of an hereditary nobility, of vast fortunes, and entirely independent of the people? Their weight is far inferior to that of the Commons. Here is a strong instance of the accumulation of powers of the different branches of government without producing any inconvenience. That Senate, sir, is a separate branch of the legislature, is the great constitutional council of the crown, and decides on lives and fortunes in impeachments, besides being the ultimate tribunal for trying controversies respecting private rights. Would it not appear that all these things should render them more formidable than the other house? Yet the Commons have generally been able to carry every thing before them. The circumstance of their representing the great body of the people, alone gives them great weight. This weight has great authority added to it, by their possessing the right (a right given to the people's representatives in Congress) of exclusively originating money bills. The authority over money will do every thing. A government cannot be supported without money. Our representatives may at any time compel the Senate to agree to a reasonable measure, by withholding supplies till the measure is consented to. There was a great debate, in the Convention, whether the Senate should have an equal power of originating money bills. It was strongly insisted, by some, that they should; but at length a majority thought it unadvisable, and the clause was passed as it now stands. I have reason to believe that our representatives had a great share in establishing this excellent regulation, and in my opinion they deserve the public thanks for it. It has been objected that this power must necessarily injure the people, inasmuch as a bare majority of the Senate might alone be assembled, and eight would be sufficient for a decision. This is on a supposition that many of the senators would neglect attending. It is to be hoped that the gentlemen who will be honored with seats in Congress will faithfully execute their trust, as well in attending as in every other part of their duty. An objection of this sort will go against all government whatever. Possible abuse, and neglect of attendance, are objections which may be urged against any government which the wisdom of man is able to construct. When it is known of how much importance attendance is, no senator would dare to incur the universal resentment of his fellow-citizens by grossly absenting himself from his duty. Do gentlemen mean that it ought to have been provided, by the Constitution, that the whole body should attend before particular business was done? Then it would be in the power of a few men, by neglecting to attend, to obstruct the public business, and possibly bring on the destruction of their country. If this power be improperly vested, it is incumbent on gentlemen to tell us in what body it could be more safely and properly lodged.
I believe, on a serious consideration, it will be found that it was necessary, for the reasons mentioned by the gentleman from Halifax, to vest the power in the Senate, or in some other body representing equally the sovereignty of the states, and that the power, as given in the Constitution, is not likely to be attended with the evils which some gentlemen apprehend. The only real security of liberty, in any country, is the jealousy and circumspection of the people themselves. Let them be watchful over their rulers. Should they find a combination against their liberties, and all other methods appear insufficient to preserve them, they have, thank God, an ultimate remedy. That power which created the government can destroy it. Should the government, on trial, be found to want amendments, those amendments can be made in a regular method, in a mode prescribed by the Constitution itself. Massachusetts, South Carolina, New Hampshire, and Virginia, have all proposed amendments; but they all concurred in the necessity of an immediate adoption. A constitutional mode of altering the Constitution itself is, perhaps, what has never been known among mankind before. We have this security, in addition to the natural watchfulness of the people, which I hope will never be found wanting. The objections I have answered deserved all possible attention; and for my part, I shall always respect that jealousy which arises from the love of public liberty.
Mr. Spencer. Mr. Chairman, I think that no argument can be used to show that this power is proper. If the whole legislative body--if the House of Representatives do not interfere in making treaties, I think they ought at least to have the sanction of the whole Senate. The worthy gentleman last up has mentioned two cases wherein he supposes that impeachments will be fairly tried by the senators. He supposes a case where the President had been guilty of corruption, and by that means had brought over and got the sanction of two thirds of the senators; and that, if it should be afterwards found that he brought them over by artifices, they would be a proper body to try him. As they will be ready to throw the odium off their own shoulders on him, they may pronounce sentence against him. He mentions another case, where, if a majority was obtained by bribing some of the senators, those who were innocent might try those who were guilty. I think that these cases will happen but rarely in comparison to other cases, where the senators may advise the President to deviate from his duty, and where a majority of them may be guilty. And should they be tried by their own body when thus guilty, does not every body see the impropriety of it? It is universally disgraceful, odious, and contemptible, to have a trial where the judges are accessory to the misdemeanor of the accused. Whether the accusation against him be true or not, if afraid for themselves, they will endeavor to throw the odium upon him. There is an extreme difference between the case of trying this officer and that of trying their own members. They are so different, that I consider they will always acquit their own members; and if they condemn the President, it will be to exonerate themselves. It appears to me that the powers are too extensive, and not sufficiently guarded. I do not wish that an aristocracy should be instituted. An aristocracy may arise out of this government, though the members be not hereditary. I would therefore wish that every guard should be placed, in order to prevent it. I wish gentlemen would reflect that the powers of the Senate are so great in their legislative and judicial capacities, that, when added to their executive powers, particularly their interference in the appointment of all officers in the continent, they will render their power so enormous as to enable them to destroy our rights and privileges. This, sir, ought to be strictly guarded against.
Mr. Iredell. Mr. Chairman, the honorable gentleman must be mistaken. He suggests that an aristocracy will arise out of this government. Is there any thing like an aristocracy in this government? This insinuation is uncandidly calculated to alarm and catch prejudices. In this government there is not the least symptom of an aristocracy, which is, where the government is in a select body of men entirely independent of the people; as, for instance, an hereditary nobility, or a senate for life, filling up vacancies by their own authority. Will any member of this government hold his station by any such tenure? Will not all authority flow, in every instance, directly or indirectly from the people? It is contended, by that gentleman, that the addition of the power of making treaties to their other powers, will make the Senate dangerous; that they would be even dangerous to the representatives of the people. The gentleman has not proved this in theory. Whence will he adduce an example to prove it? What passes in England directly disproves his assertion. In that country, the representatives of the people are chosen under undue influence; frequently by direct bribery and corruption. They are elected for seven years, and many of the members hold offices under the crown--some during pleasure, others for life. They are also not a genuine representation of the people, but, from a change of circumstances, a mere shadow of it. Yet, under these disadvantages, they having the sole power of originating money bills, it has been found that the power of the king and lords is much less considerable than theirs. The high prerogatives of the king, and the great power and wealth of the lords, have been more than once mentioned in the course of the debates. If, under such circumstances, such representatives,--mere shadows of representatives,--by having the power of the purse, and the sacred name of the people, to rely upon, are an overmatch for the king and lords, who have such great hereditary qualifications, we may safely conclude that our own representatives, who will be a genuine representation of the people, and having equally the right of originating money bills, will, at least, be a match for the Senate, possessing qualifications so inferior to those of the House of Lords in England.
It seems to be forgotten that the Senate is placed there for a very valuable purpose--as a guard against any attempt of consolidation. The members of the Convention were as much averse to consolidation as any gentleman on this floor; but without this institution, (I mean the Senate, where the suffrages of the states are equal,) the danger would be greater. There ought to be some power given to the Senate to counteract the influence of the people by their biennial representation in the other house, in order to preserve completely the sovereignty of the states. If the people, through the medium of their representatives, possessed a share in making treaties and appointing officers, would there not be a greater balance of power in the House of Representatives than such a government ought to possess? It is true that it would be very improper if the Senate had authority to prevent the House of Representatives from protecting the people. It would be equally so if the House of Representatives were able to prevent the Senate from protecting the sovereignty of the states. It is probable that either house would have sufficient authority to prevent much mischief. As to the suggestion of a tendency to aristocracy, it is totally groundless. I disdain every principle of aristocracy. There is not a shadow of an aristocratical principle in this government. The President is only chosen for four years--liable to be impeached--and dependent on the people at large for his reëlection. Can this mode of appointment be said to have an aristocratical principle in it? The Senate is chosen by the legislatures. Let us consider the example of other states, with respect to the construction of their Senate. In this point, most of them differ; though they almost all concur in this, that the term of election for senators is longer than that for representatives. The reason of this is, to introduce stability into the laws, and to prevent that mutability which would result from annual elections of both branches. In New York, they are chosen for three years; in Virginia, they are chosen for four years; and in Maryland, they are chosen for five years. In this Constitution, although they are chosen for six years, one third go out every second year, (a method pursued in some of the state constitutions,) which at the same time secures stability to the laws, and a due dependence on the state legislatures. Will any man say that there are any aristocratical principles in a body who have no power independent of the people, and whereof one third of the members are chosen, every second year, by a wise and select body of electors? I hope, therefore, that it will not be considered that there are any aristocratical principles in this government, and that it will be given up as a point not to be contended for. The gentleman contends that a council ought to be instituted in this case. One objection ought to be compared with another. It has been objected against the Constitution that it will be productive of great expense. Had there been a council, it would have been objected that it was calculated for creating new offices, and increasing the means of undue influence. Though he approves of a council, others would not.
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.
© 1987 by The University of Chicago