Article 2, Section 2, Clauses 2 and 3
Records of the Federal Convention
[1:21; Journal, 29 May]
7. Resd. that a National Executive be instituted . . . to enjoy the Executive rights vested in Congress by the Confederation.
. . . . .
9. Resd. that a National Judiciary be established . . . to be chosen by the National Legislature. . . .
[1:63; Journal, 1 June]
It was then moved, by Mr. Madison, seconded by Mr. Wilson, after the word instituted to add the words
"with power to carry into execution the national laws,--to appoint to offices in cases not otherwise provided for;"
[1:66; Madison, 1 June]
Mr. Madison thought it would be proper, before a choice shd. be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departmt. whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive shd. be struck out & that after the words "that a national Executive ought to be instituted" there be inserted the words following viz, "with power to carry into effect. the national laws. to appoint to offices in cases not otherwise provided for, and to execute such other powers "not Legislative nor Judiciary in their nature." as may from time to time be delegated by the national Legislature". The words "not legislative nor judiciary in their nature" were added to the proposed amendment in consequence of a suggestion by Genl Pinkney that improper powers might otherwise be delegated,
Mr. Wilson seconded this motion
Mr. Pinkney moved to amend the amendment by striking out the last member of it; viz. "and to execute such other powers not Legislative nor Judiciary in their nature as may from time to time be delegated." He said they were unnecessary, the object of them being included in the "power to carry into effect the national laws".
Mr. Randolph seconded the motion.
Mr. Madison did not know that the words were absolutely necessary, or even the preceding words. "to appoint to offices" &c. the whole being perhaps included in the first member of the proposition. He did not however see any inconveniency in retaining them, and cases might happen in which they might serve to prevent doubts and misconstructions.
In consequence of the motion of Mr. Pinkney, the question on Mr. Madison's motion was divided; and the words objected to by Mr. Pinkney struck out; by the votes of Connecticut. N. Y. N. J. Pena. Del. N. C. & Geo: agst. Mass. Virga. & S. Carolina the preceding part of the motion being first agreed to: Connecticut divided, all the other States in the affirmative.
[1:116; Journal, 5 June]
It was then moved and seconded to strike out the words "the national legislature" so as to read
to be appointed by.
On the question to strike out
it passed in the affirmative [Ayes--8; noes--2.]
Notice was given by Mr. Wilson that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals"
Mr C. Pinckney gave notice that when the clause which respects the appointment of the Judiciary came before the Committee he should move to restore the words
"the national legislature"
[1:119; Madison, 5 June]
The Clause--"that the national Judiciary be chosen by the National Legislature", being under consideration.
Mr. Wilson opposed the appointmt of Judges by the national Legisl: Experience shewed the impropriety of such appointmts. by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was that officers might be appointed by a single, responsible person.
Mr. Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State Tribunals are most proper to decide in all cases in the first instance.
Docr. Franklin observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practiced in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible.
Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides, the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand He was not satisfied with referring the appointment to the Executive. He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the [Volume 4, Page 31] motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the appointment by the Legislature might be struck out, & and a blank left to be hereafter filled on maturer reflection. Mr. Wilson seconds it. On the question for striking out. Massts. ay. Cont. no. N. Y. ay. N. J. ay. Pena. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. [Ayes--9; noes--2.]
Mr. Wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals"
Mr. Pinkney gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee, he should move to restore the "appointment by the national Legislature"
[1:224; Journal, 13 June]
It was moved by Mr Pinckney seconded by Mr Sherman to insert after the words "One supreme Tribunal" "the Judges of which to be appointed by the second branch of the national Legislature.
. . . . .
[Executive] to appoint to offices in cases not otherwise provided for.
[1:232; Madison, 13 June]
Mr. Pinkney & Mr. Sherman moved to insert after the words "one supreme tribunal" the words "the Judges of which to be appointed by the national Legislature"
Mr. Madison, objected to an appt. by the whole Legislature. Many of them were incompetent Judges of the requisite qualifications. They were too much influenced by their partialities. The candidate who was present, who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their Constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations but possessed of every necessary accomplishment. He proposed that the appointment should be made by the Senate, which as a less numerous & more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them.
Mr. Sharman & Mr. Pinkney withdrew their motion, and the appt. by the Senate was agd. to nem. con.
[1:292; Madison, 18 June]
IV. The supreme Executive authority of the United States . . . to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (Ambassadors to foreign Nations included) subject to the approbation or rejection of the Senate;
[1:300; Yates, 18 June]
[Hamilton plan] . . . The executive to have the power of negativing all laws--to make war or peace, with the advice of the senate--to make treaties with their advice, but to have the sole direction of all military operations, and to send ambassadors and appoint all military officers, and to pardon all offenders, treason excepted, unless by advice of the senate. On his death or removal, the president of the senate to officiate, with the same powers, until another is elected. Supreme judicial officers to be appointed by the executive and the senate. The legisature to appoint courts in each state, so as to make the state governments unnecessary to it.
[2:23; Journal, 17 July]
On the question to agree to the following clause namely "to appoint to offices in cases not otherwise provided for"
it passed unanimously in the affirmative
[2:41; Madison, 18 July]
"The Judges of which to be appointd. by the 2d. branch of the Natl. Legislature."
Mr. Ghorum, wd. prefer an appointment by the 2d branch to an appointmt. by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve. with the advice & consent of the 2d branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, & was found to answer perfectly well.
Mr. Wilson, still wd. prefer an an appointmt. by the Executive; but if that could not be attained, wd. prefer in the next place, the mode suggested by Mr. Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." Mr. Govr. Morris 2ded. the motion.
Mr. L. Martin was strenuous for an appt. by the 2d. branch. Being taken from all the States it wd. be best informed of characters & most capable of making a fit choice.
Mr. Sherman concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.
Mr Mason. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments, of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides agst. referring the appointment to the Executive. He mentioned as one, that as the seat of Govt. must be in some one State, and the Executive would remain in office for a considerable time, for 4, 5, or 6 years at least he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.
Mr. Ghorum. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters.--The Senators will be as likely to form their attachments at the seat of Govt where they reside, as the Executive. If they can not get the man of the particular State to which they may respectively belong, [Volume 4, Page 32] they will be indifferent to the rest. Public bodies feel no personal responsibly and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character produced by a participation of numbers, in dishonorable measures, and of the length to which a public body may carry wickedness & cabal.
Mr. Govr. Morris supposed it would be improper for an impeachmt. of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they wd. be much about the seat of Govt they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments agst. the motion before the House.
Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.
Mr. Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.
Mr. Randolph. It is true that when the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it. Yet he had rather leave the appointmt. there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving appts. would be more diffusive if they depended on the Senate, the members of which wd. be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened
Mr. Bedford thought there were solid reasons agst. leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.
Mr. Ghorum remarked that the Senate could have no better information than the Executive They must like him, trust to information from the members belonging to the particular State where the Candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of the Judges to the Executive, instead of the 2d. branch
Mas. ay. Cont. no. Pa. ay. Del. no. Md. no Va. no. N. C. no. S. C. no--Geo. absent. [Ayes--2; noes--6; absent--1.]
Mr. Ghorum moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2d branch & every such nomination shall be made at least days prior to such appointment". This mode he said had been ratified by the experience of 140 years in Massachussts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing.
Mr. Govr. Morris 2ded. & supported the motion.
Mr. Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it as too much fettering the Senate.
Question on Mr. Ghorum's motion
Mas. ay. Con. no. Pa. ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. no. Geo. absent. [Ayes--4; noes--4; absent--1.]
Mr. Madison moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch. Mr. Govr. Morris 2ded. the motion. By common consent the consideration of it was postponed till tomorrow.
[2:80; Madison, 21 July]
The motion made by Mr. Madison July 18. & then postponed, "that the Judges shd. be nominated by the Executive & such nominations become appointments unless disagreed to by 2/3 of the 2d. branch of the Legislature," was now resumed.
Mr. Madison stated as his reasons for the motion. 1 that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment- 2 that in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it. 3. that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The Executive Magistrate wd be considered as a national officer, acting for and equally sympathising with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye Nthern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.
Mr. Pinkney was for placing the appointmt. in the 2d. b. exclusively. The Executive will possess neither the requisite [Volume 4, Page 33] knowledge of characters, nor confidence of the people for so high a trust.
Mr. Randolph wd. have preferred the mode of appointmt. proposed formerly by Mr Ghorum, as adopted in the Constitution of Massts. but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniencies will proportionally prevail if the appointments be be referred to either branch of the Legislature or to any other authority administered by a number of individuals.
Mr. Elseworth would prefer a negative in the Executive on a nomination by the 2d. branch, the negative to be overruled by a concurrence of 2/3 of the 2d. b. to the mode proposed by the motion; but preferred an absolute appointment by the 2d. branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses & intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.
Mr. Govr. Morris supported the motion. 1. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one's own cause, is the appointment of the Judge. 2. It had been said the Executive would be uninformed of characters. The reverse was ye truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U. S. required by the nature of his administration, will or may have the best possible information. 3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there can not surely be any reasonable ground of Jealousy in the present case. He added that if the Objections agst. an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature or by any part of it.
Mr. Gerry. The appointment of the Judges like every other part of the Constitution shd. be so modeled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him also a strong objection that 2/3 of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good.
Mr. Madison observed that he was not anxious that 2/3 should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.
Col. Mason found it his duty to differ from his colleagues in their opinions & reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the Judiciary department.
On the question, the motion now being "that the executive should nominate, & such nominations should become appointments unless disagreed to by the Senate"
Mas. ay. Ct. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C no. Geo. no. [Ayes--3; noes--6.]
On question for agreeing to the clause as it stands by which the Judges are to be appointed by 2d. branch
Mas. no. Ct. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [Ayes--6; noes--3.]
[2:121; Madison, 26 July]
--to appoint to offices in cases not otherwise provided for--to be removeable on impeachment & conviction of mal-practice or neglect of duty--to receive a fixt compensation for the devotion of his time to the public service, to be paid out of the Natl. Treasury"--it passed in the affirmative.
N. H. ay. Mas. not on floor. Ct. ay. N. J. ay. Pa. no. Del. no. Md. no. Va. divd. Mr. Blair & Col. Mason ay. Genl. Washington & Mr Madison no. Mr. Randolph happened to be out of the House. N--C--ay. S. C. ay. Geo. ay. [Ayes--6; noes--3; divided--1; absent--1.]
[2:132, 136, 143, 155, 169; Committee of Detail]
Resolved That a national Executive be instituted to consist of a single Person--to be chosen for the Term of six Years--with Power to carry into Execution the national Laws--to appoint to Offices in Cases not otherwise provided for-- . . .
Resolved That a national Judiciary be established to consist of one Supreme Tribunal--the Judges of which shall be appointed by the second Branch of the national Legislature--
. . . . .
15. S. & H. D. in C. ass. shall institute Offices and appoint Officers for the Departments of for. Affairs, War, Treasury and Admiralty--
. . . . .[Volume 4, Page 34]
(3. the lawful territory To make treaties of commerce (qu: as to senate) Under the foregoing restrictions)
4. (To make treaties of peace or alliance (qu: as to senate) under the foregoing restrictions, and
without the surrender of territory
for an equivalent,
and in no case, unless a superior title.) . . .
3. The powers destined for the senate peculiarly, are
1. To make treaties of commerce
2. to make Treaties of peace & Alliance
3. to appoint the judiciary
4. to send Embassadors
4. The executive . . .
5. to appoint to offices not otherwise provided for. by the constitution . . .
5. The Judiciary
1. shall consist of one supreme tribunal
2. the judges whereof shall be appointed by the senate1
. . . . .
The Senate (shall be empowered) of the United States shall have Power to make Treaties of (Peace, of Alliance, and of Commerce,) to send Ambassadors, and to appoint the Judges of the Supreme national Court2
. . . . .
The Senate of the United States shall have Power to make Treaties; to send Ambassadors; and to appoint the Judges of the Supreme (national) Court. . . .
He shall commission all the Officers of the United States and (shall) appoint (Officers in all Cases) (such of them whose appts.) them in all cases not otherwise provided for by this Constitution. . . .
The Judges of the Supreme (National) Court shall (be chosen by the Senate by Ballott). (They shall) hold their Offices during good Behaviour.3
[2:183; Madison, 6 August]
Sect 1. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the supreme Court.
. . . . .
he shall commision all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution.
[2:297; Madison, 15 Aug.]
Mr. Mercer should hereafter be agst. returning to a reconsideration of this section. He contended, (alluding to Mr. Mason's observations) that the Senate ought not to have the power of treaties. This power belonged to the Executive department; adding that Treaties would not be final so as to alter the laws of the land, till ratified by legislative authority. This was the case of Treaties in Great Britain; particularly the late Treaty of Commerce with France.
Col. Mason. did not say that a Treaty would repeal a law; but that the Senate by means of treaty might alienate territory &c. without legislative sanction. The cessions of the British Islands in W-- Indies by Treaty alone were an example-- If Spain should possess herself of Georgia therefore the Senate might by treaty dismember the Union. He wished the motion to be decided now, that the friends of it might know how to conduct themselves.
[2:319; Madison, 17 Aug.]
Mr Butler moved to give the Legislature power of peace, as they were to have that of war.
Mr Gerry 2ds him. 8 Senators may possibly exercise the power if vested in that body, and 14 if all should be present; and may consequently give up part of the U. States. The Senate are more liable to be corrupted by an Enemy than the whole Legislature.
On the motion for adding "and peace" after "war"
N. H. no. Mas. no. Ct. no. Pa. no. Del. no. Md. no. Va no. N. C. no S. C no. Geo. no. [Ayes--0; noes--10.]
[2:389; Madison, 23 Aug.]
Art: IX being next for consideration,
Mr Govr Morris argued agst. the appointment of officers by the Senate. He considered the body as too numerous for the purpose; as subject to cabal; and as devoid of responsibility.--If Judges were to be tried by the Senate according to a late report of a Committee it was particularly wrong to let the Senate have the filling of vacancies which its own decrees were to create.
. . . . .
Art IX. sect. 1. being resumed, to wit "The Senate of the U. S. shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court."
Mr. Madison observed that the Senate represented the States alone, and that for this as well as other obvious reasons it was proper that the President should be an agent in Treaties.
Mr. Govr. Morris did not know that he should agree to refer the making of Treaties to the Senate at all, but for the present wd. move to add as an amendment to the section, after "Treaties"--"but no Treaty shall be binding on the U. S. which is not ratified by a law."
Mr Madison suggested the inconvenience of requiring a legal ratification of treaties of alliance for the purposes of war &c &c
Mr. Ghorum. Many other disadvantages must be experienced if treaties of peace and all negociations are to be previously ratified--and if not previously, the Ministers would be at a loss how to proceed-- What would be the case in G. Britain if the King were to proceed in this maner? American Ministers must go abroad not instructed by the same Authority (as will be the case with other Ministers) which is to ratify their proceedings.
Mr. Govr. Morris. As to treaties of alliance, they will oblige foreign powers to send their Ministers here, the very thing we should wish for. Such treaties could not be otherwise made, if his amendment shd. succeed. In general he was not solicitous to multiply & facilitate Treaties. He wished none to be made with G. Britain, till she should be at war. Then a good bargain might be made with her. So with other foreign powers. The more difficulty [Volume 4, Page 35] in making treaties, the more value will be set on them.
Mr. Wilson. In the most important Treaties, the King of G. Britain being obliged to resort to Parliament for the execution of them, is under the same fetters as the amendment of Mr. Morris will impose on the Senate. It was refused yesterday to permit even the Legislature to lay duties on exports. Under the clause, without the amendment, the Senate alone can make a Treaty, requiring all the Rice of S. Carolina to be sent to some one particular port.
Mr. Dickinson concurred in the amendment, as most safe and proper, tho' he was sensible it was unfavorable to the little States; wch would otherwise have an equal share in making Treaties.
Docr. Johnson thought there was something of solecism in saying that the acts of a Minister with plenipotentiary powers from one Body, should depend for ratification on another Body. The Example of the King of G. B. was not parallel. Full & compleat power was vested in him--If the Parliament should fail to provide the necessary means of execution, the Treaty would be violated.
Mr. Ghorum in answer to Mr. Govr Morris, said that negociations on the spot were not to be desired by us, especially if the whole Legislature is to have any thing to do with Treaties. It will be generally influenced by two or three men, who will be corrupted by the Ambassadors here. In such a Government as ours, it is necessary to guard against the Government itself being seduced.
Mr. Randolph observing that almost every Speaker had made objections to the clause as it stood, moved in order to a further consideration of the subject, that the Motion of Mr. Govr. Morris should be postponed, and on this question It was lost the States being equally divided.
Massts. no. Cont. no. N. J.--ay--Pena. ay. Del. ay. Md. ay. Va. ay--N. C. no. S. C. no--Geo. no. [Ayes--5; noes--5.]
On Mr. Govr. Morris Motion
Masts. no. Cont no. N. J. no. Pa. ay--Del. no--Md. no. Va. no. N. C divd S. C. no. Geo--no. [Ayes--1; noes--8; divided--1.]
The several clauses of Sect: 1. art IX, were then separately postponed after inserting "and other public Ministers" next after "Ambassadors."
Mr. Madison hinted for consideration, whether a distinction might not be made between different sorts of Treaties--Allowing the President & Senate to make Treaties eventual and of Alliance for limited terms--and requiring the concurrence of the whole Legislature in other Treaties.
The 1st Sect. art IX. was finally referred nem: con: to the committee of Five,
[2:395; McHenry, 23 Aug.]
The IX article being taken up, It was motioned that no treaty should be binding till it received the sanction of the legislature.
It was said that a minister could not then be instructed by the Senate who were to appoint him, or if instructed there could be no certainty that the house of representatives would agree to confirm what he might agree to under these instructions.
To this it was answered that all treaties which contravene a law of England or require a law to give them operation or effect are inconclusive till agreed to by the legislature of Great Britain.
Except in such cases the power of the King without the concurrence of the parliament conclusive.
Mr. Maddison. the Kings power over treaties final and original except in granting subsidies or dismembering the empire. These required parliamentary acts.
[2:405; Madison, 24 Aug.]
Mr. Sherman objected to the sentence "and shall appoint officers in all cases not otherwise provided for by this Constitution". He admitted it to be proper that many officers in the Executive Department should be so appointed--but contended that many ought not, as general officers in the Army in time of peace &c. Herein lay the corruption in G. Britain. If the Executive can model the army, he may set up an absolute Government; taking advantage of the close of a war and an army commanded by his creatures. James 2d. was not obeyed by his officers because they had been appointed by his predecessors not by himself. He moved to insert "or by law" after the word "Constitution".
On Motion of Mr Madison "officers" was struck out and "to offices" inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the Legislature.
On the question for inserting "or by law as moved by Mr. Sherman
N. H. no. Mas. no. Ct. ay. N. J. no. Pena. no. Del. no. Md. no. Va. no. N. C. absent. S. C. no. Geo. no. [Ayes--1; noes--9; absent--1.]
Mr. Dickinson moved to strike out the words "and shall appoint to offices in all cases not otherwise provided for by this Constitution" and insert--"and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for, and to all offices which may hereafter be created by law."
Mr Randolph observed that the power of appointments was a formidable one both in the Executive & Legislative hands--and suggested whether the Legislature should not be left at liberty to refer appointments in some cases, to some State Authority.
Mr. Dickenson's motion, it passed in the affirmative
N. H. no. Mas--no--Ct ay--N--J--ay. Pa. ay--Del. no. Md ay. Va. ay--N--C. abst. S. C no. Geo--ay [Ayes--6; noes--4; absent--1.]
Mr. Dickinson then moved to annex to his last amendment "except where by law the appointment shall be vested in the Legislatures or Executives of the several States". Mr. Randolph 2ded. the motion
Mr. Wilson--If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the appts be referred to them.
Mr. Sherman objected to "Legislatures" in the motion, which was struck out by consent of the movers.
Mr. Govr. Morris--This would be putting it in the [Volume 4, Page 36] power of the States to say, "You shall be viceroys but we will be viceroys over you"--
The motion was negatived without a Count of the States--
[2:418; Madison, 25 Aug.]
On The question now taken on Mr. Dickinson motion of yesterday, allowing appointments to offices, to be referred by the Genl. Legislature to the Executives of the several States" as a farther amendment to sect. 2. art. X., the votes were
N. H. no Mas. no. Ct ay. Pa. no--Del no. Md divided--Va. ay--N--C--no--S. C. no. Geo. ay--[Ayes--3; noes--6; divided--1.]
In amendment of the same section, "other public Ministers" were inserted after "ambassadors".
Mr. Govr Morris moved to strike out of the section--"and may correspond with the supreme Executives of the several States" as unnecessary and implying that he could not correspond with others. Mr. Broome 2ded. him.
On the question
N. H. ay. Mas. ay. Ct. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. ay--S. C. ay. Geo--ay. [Ayes--9; noes--1.]
[2:420; McHenry, 25 Aug.]
The clause in the 2 sect. X article, "he shall commission all the officers of the U. S. and shall appoint officers in all cases not otherwise provided for by this constitution, was moved to be amended by adding, except where by law the Executive of the several States shall have the power--Amendment negatives. Maryland divided--D. C. and J. against Martin and myself affirm.
[4:57; Mason, 31 Aug.]
The power of making Treaties & appg. ambasrs. &c to be in ye. Senate with the concurrence of ye. Council of St: or vice versa
The appointmt. to all offices estabd. by the legisl: to be in the Executive with ye. concurrence of ye. Senate
[2:495; Journal, 4 Sept.]
Sect. 4. The President by and with the advice and consent of the Senate, shall have power to make treaties: and he shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors and other public Ministers, Judges of the supreme Court, and all other officers of the U. S. whose appointments are not otherwise herein provided for. But no Treaty except Treaties of Peace shall be made without the consent of two thirds of the Members present
[2:538; Madison, 7 Sept.]
The Section 4.--to wit, "The President by & with the advice and consent of the Senate shall have power to make Treaties &c"
Mr. Wilson moved to add, after the word "Senate" the words, "and House of Representatives". As treaties he said are to have the operation of laws, they ought to have the sanction of laws also. The circumstance of secrecy in the business of treaties formed the only objection; but this he thought, so far as it was inconsistent with obtaining the Legislative sanction, was outweighed by the necessity of the latter.
Mr. Sherman thought the only question that could be made was whether the power could be safely trusted to the Senate. He thought it could; and that the necessity of secrecy in the case of treaties forbade a reference of them to the whole Legislature.
Mr Fitzsimmons 2ded. the motion of Mr Wilson, & on the question
N. H. no. Mas. no. Ct. no. N. J. no. Pa ay. Del. no. Md. no Va. no. N. C. no. S. C. no. Geo. no. [Ayes--1; noes--10.]
The first sentence as to making treaties, was then Agreed to: nem: con:
--"He shall nominate &c Appoint ambassadors &c."
Mr. Wilson objected to the mode of appointing, as blending a branch of the Legislature with the Executive. Good laws are of no effect without a good Executive; and there can be no good Executive without a responsible appointment of officers to execute. Responsibility is in a manner destroyed by such an agency of the Senate--He would prefer the Council proposed by Col: Mason, Provided its advice should not be made obligatory on the President.
Mr. Pinkney was against joining the Senate in these appointments, except in the instances of Ambassadors who he thought ought not to be appointed by the President
Mr. Govr. Morris said that as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security. As Congress now make appointments there is no responsibility.
Mr Gerry--The idea of responsibility in the nomination to offices is chimerical--The President can not know all characters, and can therefore always plead ignorance.
Mr King. As the idea of a Council proposed by Col. Mason has been supported by Mr. Wilson, he would remark that most of the inconveniencies charged on the Senate are incident to a Council of Advice. He differed from those who thought the Senate would sit constantly. He did not suppose it was meant that all the minute officers were to be appointed by the Senate, or any other original source, but by the higher officers of the departments to which they belong. He was of opinion also that the people would be alarmed at an unnecessary creation of New Corps which must increase the expence as well as influence of the Government.
On the question on these words in the clause viz--"He shall nominate & by & with the advice and consent of the Senate, shall appoint ambassadors, and other public ministers (and Consuls) Judges of the supreme Court" Agreed to: nem: con: the insertion of "(and consuls" having first taken place.
On the question on the following words "And all other officers of U. S--"
N. H.--ay--Mas ay. Ct ay. N--J--ay. Pa. no. Del. ay. Md. ay. Va ay. N--C. ay. S--C. no. Geo. ay. [Ayes--9; noes--2.]
On motion of Mr. Spaight--"that the President shall have power to fill up all vacancies that may happen during [Volume 4, Page 37] the recess of the Senate by granting Commissions which shall expire at the end of the next Session of the Senate" It was agreed to nem: con:
Section 4. "The President by and with the advice and consent of the Senate shall have power to make Treaties"--"But no treaty shall be made without the consent of two thirds of the members present"--this last being before the House.
Mr Wilson thought it objectionable to require the concurrence of 2/3 which puts it in the power of a minority to controul the will of a majority.
Mr. King concurred in the objection; remarking that as the Executive was here joined in the business, there was a check which did not exist in Congress where The concurrence of 2/3 was required.
Mr. Madison moved to insert after the word "treaty" the words "except treaties of peace" allowing these to be made with less difficulty than other treaties--It was agreed to nem: con:
Mr. Madison then moved to authorize a concurrence of two thirds of the Senate to make treaties of peace, without the concurrence of the President".--The President he said would necessarily derive so much power and importance from a state of war that he might be tempted, if authorized, to impede a treaty of peace. Mr. Butler 2ded. the motion
Mr Gorham thought the precaution unnecessary as the means of carrying on the war would not be in the hands of the President, but of the Legislature.
Mr. Govr Morris thought the power of the President in this case harmless; and that no peace ought to be made without the concurrence of the President, who was the general Guardian of the National interests.
Mr. Butler was strenuous for the motion, as a necessary security against ambitious & corrupt Presidents. He mentioned the late perfidious policy of the Statholder in Holland; and the artifices of the Duke of Marlbro' to prolong the war of which he had the management.
Mr. Gerry was of opinion that in treaties of peace a greater rather than less proportion of votes was necessary, than in other treaties. In Treaties of peace the dearest interests will be at stake, as the fisheries, territory &c. In treaties of peace also there is more danger to the extremities of the Continent, of being sacrificed, than on any other occasions.
Mr. Williamson thought that Treaties of peace should be guarded at least by requiring the same concurrence as in other Treaties.
On the motion of Mr. Madison & Mr. Butler
N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del--no. Md. ay--Va no--N. C. no. S. C. ay. Geo. ay. [Ayes--3; noes--8.]
On the part of the clause concerning treaties amended by the exception as to Treaties of peace.
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. ay. Md. ay. Va. ay. N--C. ay. S--C. ay--Geo. no. [Ayes--8; noes--3.]
[4:58; Madison, 7 Sept.]
7 September 1787
[2:547; Madison, 8 Sept.]
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 "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 [Ayes--8; noes--3.][Volume 4, Page 38]
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. [Ayes--1; noes--9; divided--1.]
Mr Rutlidge & Mr. Gerry moved that "no Treaty 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.
Mr. Sherman movd, that "no Treaty 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. [Ayes--5; noes--6.]
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. [Ayes--5; noes--6.]
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 a question on 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 shall be appd but to offices created by the Constitution or by law."--This was rejected as unnecessary by six no's and five ays;
The Ayes. Mas. Ct. N. J. N. C. Geo.--Noes--N. H. Pa.: Del. Md Va. S. C. [Ayes--5; noes--6.]
[2:574, 599; Committee of Style]
Sect. 4. The President by and with the advice and consent of the Senate, shall have power to make treaties: and he shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other officers of the U. S. whose appointments are not otherwise herein provided for. But no Treaty shall be made without the consent of two thirds of the Members present.
. . . . .
(a) He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; and he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for.
[2:627; Madison, 15 Sept.]
Art II. sect. 2. (paragraph 2) To the end of this, Mr Governr. Morris moved to annex "but the Congress may by law vest the appointment of such inferior Officers as they think proper, in the President alone, in the Courts of law, or in the heads of Departments." Mr Sherman 2ded. the motion
Mr. Madison. It does not go far enough if it be necessary at all--Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.
Mr Govr Morris There is no necessity. Blank Commissions can be sent--
On the motion
N. H. ay. Mas--no--Ct ay. N. J. ay. Pa. ay. Del. no. Md. divd Va no. N. C. ay--S C no. Geo--no--[Ayes--5; noes--5; divided--1.]
The motion being lost by the equal division of votes, It was urged that it be put a second time, some such provision being too necessary, to be omitted. and on a second question it was agreed to nem. con.
. . . . .
Art: II. Sect. 2. After "Officers of the U. S. whose appointments are not otherwise provided for," were added the words "and which shall be established by law".
[2:639; Mason, 15 Sept.]
By declaring all treaties supreme laws of the land, the Executive and the Senate have, in many cases, an exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties, and requiring the assent of the House of Representatives, where it could be done with safety.[Volume 4, Page 39]
The Founders' Constitution
Volume 4, Article 2, Section 2, Clauses 2 and 3, Document 1
The University of Chicago Press
Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.