Saturday September 8, 1787

In Convention of the Whole
James Madison's Notes 

The last Report of Committee of Eleven (see Sepr. 4) was resumed. 

Mr. King moved to strike out the "exception of Treaties of peace" from the general clause requiring two thirds of the Senate for making Treaties 

Mr. Wilson wished the requisition of two thirds to be struck out altogether If the majority cannot be trusted, it was a proof, as observed by Mr. Ghorum, that we were not fit for one Society. 

A reconsideration of the whole clause was agreed to. 

Mr. Govr. Morris was agst. striking out the "exception of Treaties of peace" If two thirds of the Senate should be required for peace, the Legislature will be unwilling to make war for that reason, on account of the Fisheries or the Mississippi, the two great objects of the Union. Besides, if a Majority of the Senate be for peace, and are not allowed to make it, they will be apt to effect their purpose in the more disagreeable mode, of negativing the supplies for the war. 

Mr. Williamson remarked that Treaties are to be made in the branch of the Govt. where there may be a majority of the States without a majority of the people, Eight men may be a majority of a quorum, & should not have the power to decide the conditions of peace. There would be no danger, that the exposed States, as S. Carolina or Georgia, would urge an improper war for the Western Territory. 

Mr. Wilson If two thirds are necessary to make peace, the minority may perpetuate war, against the sense of the majority. 

Mr. Gerry enlarged on the danger of putting the essential rights of the Union in the hands of so small a number as a majority of the Senate, representing perhaps, not one fifth of the people. The Senate will be corrupted by foreign influence. 

Mr. Sherman was agst leaving the rights, established by the Treaty of Peace, to the Senate, & moved to annex a "proviso that no such rights shd be ceded without the sanction of the Legislature. 

Mr Govr. Morris seconded the ideas of Mr Sherman. 

Mr. Madison observed that it had been too easy in the present Congress to make Treaties altho' nine States were required for the purpose. 

On the question for striking "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.] 

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. 

[Ayes -- 3; noes -- 8.] 

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. 1 [Ayes -- 5; noes -- 6.] 

The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.

Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined-- As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration" Mr. Gerry seconded him-- 

Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate. 

Mr Govr Morris, it will not be put in force & can do no harm-- An election of every four years will prevent maladministration. 

Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors" agst. the State" 2

On the question thus altered 

N. H-- ay. Mas. ay-- Ct. ay. N. J. no Pa no. Del. no. Md ay. Va. ay. N. C. ay. S. C. ay. 3 Geo. ay. [Ayes -- 8; noes -- 3.] 

Mr. Madison, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemesnor. The President under these circumstances was made improperly dependent. He would prefer the supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part. 

Mr Govr Morris thought no other tribunal than the Senate could be trusted. The Supreme Court were too few in number and might be warped or corrupted. He was agst. a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out. -- 

Mr Pinkney disapproved of making the Senate the Court of Impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst him, and under the influence of heat and faction throw him out of office. 

Mr. Williamson thought there was more danger of too much lenity than of too much rigour towards the President, considering the number of cases in which the Senate was associated with the President -- 

Mr Sherman regarded the Supreme Court as improper to try the President, because the Judges would be appointed by him. 

On motion by Mr. Madison to strike out the words "by the Senate" after the word "Conviction" 

N-- H. no. Mas-- no. Ct. no. N. J. no-- Pa. ay-- Del-- no. Md. no. Va. ay-- N. C. no. S-- C-- no. Geo. no. [Ayes -- 2; noes -- 9.] 

In the amendment of Col: Mason just agreed to, the word "State" after the words misdemeanors against" was struck out, and the words "United States" inserted, unanimously 4 in order to remove ambiguity-- 

On the question to agree to clause as amended, 

N. H. ay. Mas. ay. Cont ay 5 N. J. ay. Pa. no. Del. ay 7\5 Md. ay-- Va. ay. N-- C. ay. S. C. ay. Geo. ay [Ayes -- 10; noes -- 1.] 

On motion "The vice-President and other Civil officers of the U. S. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments. 

The clause of the report made on the 5th. Sepr. & postponed was taken up, to wit -- "All bills for raising revenue shall originate in the House of Representatives; and shall be subject to alterations and amendments by the Senate. No money shall be drawn from the Treasury but in consequence of appropriations made by law." 

It was moved to strike out the words "and shall be subject to alterations and amendments by the Senate" and insert the words used in the Constitution of Massachusetts on the same subject -- "but the Senate may propose or concur with amendments as in other bills" -- which was agreed too hem: con: 6

On the question On the first part of the clause -- "All bills for raising revenue shall originate in the house of Representatives" 7

N. H. ay. Mas. ay. Ct. ay. N. J. ay Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Ayes -- 9; noes -- 2.] 

Mr. Govr Morris moved to add to clause (3) of the report made on Sept. 4. the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz -- "The Senate of the U. S. shall have power to try all impeachments: but no person shall be convicted without the concurrence of two thirds of the members present: and every member shall be on oath" 

N. H. ay-- Mas. ay. Ct. ay. N. J-- ay. Pa. no-- Del--ay-- Md ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [Ayes --9; noes -- 2.] 

Mr. Gerry repeated his motion above made on this day, in the form following "The Legislature shall have the sole right of establishing offices not herein provided for". which was again negatived: Mas. Cont. & Geo. only being ay. 8

Mr. McHenry observed that the President had not yet been any where authorized to convene the Senate, and moved to amend Art X. sect. 2. by striking out the words "He may convene them (the Legislature) on extraordinary occasions" & insert "He may convene both or either of the Houses on extraordinary occasions" -- This he added would also provide for the case of the Senate being in Session at the time of convening the Legislature. 

Mr. Wilson said he should vote agst the motion because it implied that the senate might be in Session, when the Legislature was not, which he thought improper. 

On the question 

N. H. ay-- Mas. no. Ct. ay. N. J. ay. Pa. no. Del-- ay. Md. ay. Va. no-- N. C. ay. S. C. no. Geo. ay. [Ayes -- 7; noes -- 4.] 

A Committee was then appointed by Ballot to revise the stile of and arrange the articles which had been agreed to by the House. The Committee consisted of Mr. Johnson, Mr. Hamilton, Mr Govr. Morris, Mr. Madison and Mr. King. 

Mr. Williamson moved that previous to this work of the Committee the clause relating to the number of the House of Representatives shd. be reconsidered for the purpose of increasing the number.

Mr Madison 2ded. the Motion 

Mr. Sherman opposed it-- he thought the provision on that subject amply sufficient. 

Col: Hamilton expressed himself with great earnestness and anxiety in favor of the motion. He avowed himself a friend to a vigorous Government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation. He was seriously of opinion that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties. He remarked that the connection between the President & Senate would tend to perpetuate him, by corrupt influence. It was the more necessary on this account that a numerous representation in the other branch of the Legislature should be established. 

On the motion of Mr. Williamson to reconsider, it was negatived, 

9 N-- H-- no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. ay. Md. ay. Va ay-- N. C. ay. S. C. no. Geo. no. [Ayes -- 5; noes -- 6.] 
Adjd


1: Taken from Journal.
2: Revised from Journal.
3: In the printed Journal. S. Carolina -- no.
4: Taken from Journal.
5: Taken from Journal.
6: Upon this subject, see June 13 (references under note 3).
7: This was a conciliatory vote, the effect of the compromise formerly alluded to. See Note Wednesday Sept. 5.
8: Taken from Journal.
9: This motion & vote are entered on the Printed journal of the ensuing morning.