shall appoint, ambassadors, and other public ministers and consuls, and judges of the Supreme Court,"

it was 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 the United States,"

New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, Georgia, ay, 9; Pennsylvania, South Carolina, no, 2.

On motion of Mr. SPAIGHT, that

the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session of the Senate,"

"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,"

being considered, and the last clause being before the House, —

Mr. WILSON thought it objectionable to require the concurrence of two thirds, which puts it into the power of a minority to control 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 two thirds 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 concur rence 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 seconded the motion.

Mr. GORHAM thought the security unnecessary, as the means of carrying on the war would not be in the hands of the President, but of the legislature.

Mr. GOUVERNEUR 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 and corrupt Presidents. He mentioned the late perfidious policy of the stadtholder in Holland, and the artifices of the Duke of Marlborough to prolong the war of which he had the management.

Mr. GERRY was of opinion that in treaties of peace a greater rather than a less proportion of votes was necessary, than in other treaties. In treaties of peace the dearest interests will be at stake, as

the fisheries, territories. &c. In treaties of peace, also, there is more danger, to the extremities of the continent, of being sacrificed, than on any other occasion.

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 and Mr. Butler, Maryland, South Carolina, Georgia, ay, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, no, 8. On the part of the clause concerning treaties, amended by the ex-' ception as to treaties of peace,

New Hampshire, Massachusetts, Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, ay, 8; New Jersey, Pennsylvania, Georgia, no, 3.

The clause,

"and may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices," being before the House,

Col. MASON* said, that, in rejecting a council to the President, we were about to try an experiment on which the most despotic government had never ventured. The grand seignior himself had his divan. He moved to postpone the consideration of the clausc, in order to take up the following:

"That it be an instruction to the committee of the states to prepare a clause or clauses for establishing an ex cutive council, as a council of state for the President of the United States; to consist of six members, two of which from the Eastern, two from the Middle, and two from the Southern Stites; with a rotation and duration of office similar to those of the Senate; such council to be appointed by the legislature, or by the Senate."

Dr. FRANKLIN seconded the motion. We seemed, he said, too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. Experience showed that caprice, the intrigues of favorites and mistresses, were nevertheless the means most prevalent in monarchies. Among instances of abuse in such modes of appointment, he mentioned the many bad governors appointed in Great Britain for the colonies. He thought a council would not only be a check on a bad President, but be a relief to a good one.

Mr. GOUVERNEUR MORRIS. The question of a council was considered in the committee, where it was judged that the President, by persuading his council to concur in his wrong measures, would acquire their protection for them.

Mr. WILSON approved of a council, in preference to making the Senate a party to appointments.

Mr. DICKINSON was for a council. It would be a singular thing, if the measures of the executive were not to undergo some previous discussion before the President.

Mr. MADISON was in favor of the instruction to the committee proposed by Col. Mason.

In the printed Journal, Mr. Madison is erroneously substituted for Col. Mason.

The motion of Col. Mason was negatived, Maryland, South Carolina, Georgia, ay, 3; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, no, 8.

On the question for authorizing the President to call for the opinions of the heads of departments, in writing, it passed in the affirmative, New Hampshire only being no.*

The clause was then unanimously agreed to.

Mr. WILLIAMSON and Mr. SPAIGHT moved,

"that no treaty of peace affecting territorial rights should be made without the concurrence of two thirds of the members of the Senate present."

Mr. KING. It will be necessary to look out for securities for so some other rights, if this principle be established; he moved to extend the motion to "all present rights of the United States."

Adjourned.

SATURDAY, September 8.

In Convention. The last report of the committee of eleven (see the 4th of September) was resumed.

Mr. KING moved to strike out the exception of treaties of peace from the general clause requiring two thirds of the Senate for making treaties.

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

A reconsideration of the whole clause was agreed to.

Mr. GOUVERNEUR MORRIS was against striking out the exception of treaties of peace. If two thirds of the Senate should be required for peace, the legislature will be unwilling to make war for that reason, on account of the fisheries, or the Mississippi, the two great objects of the Union. Besides, if a majority of the Senate be for peace, and are not allowed to make it, they will be apt to effect their purpose in the more disagreeable mode of negativing the supplies for the war.

Mr. WILLIAMSON remarked, that treaties are to be made in the branch of the government where there may be a majority of the states, without a majority of the people. Eight men may be a majority of a quorum, and should not have the power to decide the conditions of peace. There would be no danger that the exposed states, as South Carolina or Georgia, would urge an improper war for the western territory.

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

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

Mr. SHERMAN was against leaving the rights established by the

*Not so stated in the printed Journal; but conformable to the result afterwards appearing.

treaty of peace, to the Senate; and moved to annex a proviso, that no such rights should be ceded without the sanction of the legislature. Mr. GOUVERNEUR MORRIS seconded the ideas of Mr. Sher

man.

Mr. MADISON observed, that it had been too easy, in the present Congress, to make treaties, although nine states were required for the purpose.

On the question for striking out "except treaties of peace,"

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, ay, 8; New Jersey, Delaware, Maryland, no, 3.

Mr. WILSON and Mr. DAYTON moved to strike out the clause requiring two thirds of the Senate for making treaties; on which,— Delaware, ay, 1; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, 9; Connecticut, divided.

Mr. RUTLEDGE and Mr. GERRY moved that,

"no treaty shall be made without the consent of two thirds of all the members of the Senate;"

according to the example in the present Congress.

Mr. GORHAM. There is a difference in the case, as the President's consent will also be necessary in the new government.

On the question,

North Carolina, South Carolina, Georgia, ay, 3; New Hampshire, Massachusetts, (Mr. Gerry, ay,) Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, no, 8.

Mr. SHERMAN moved that,

"no treaty shall be made without a majority of the whole number of the Senate." Mr. GERRY seconded him.

Mr. WILLIAMSON. This will be less security than two thirds, as now required.

Mr. SHERMAN. It will be less embarrassing.

On the question, it passed in the negative.

Massachusetts, Connecticut, Delaware, South Carolina, Georgia, ay, 5; New Hampshire, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, no, 6. Mr. MADISON moved that a quorum of the Senate consist of two thirds of all the members.

Mr. GOUVERNEUR MORRIS. This will put it in the power of one man to break up a quorum.

Mr. MADISON. This may happen to any quorum.

On the question, it passed in the negative.

Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 5; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, no, 6.257

Mr. WILLIAMSON and Mr. GERRY moved,

"that no treaty should be made without previous notice to the members, and a reasonable time for their attending."

On the question, all the states, no; except North Carolina, South Carolina, and Georgia, ay.

On a question on the clause of the report of the committee of

eleven, relating to treaties by two thirds of the Senate, all the states were ay; except Pennsylvania, New Jersey, and Georgia, no.258

Mr. GERRY moved that,

"no officer shall be appointed but to offices created by the Constitution or by law." This was rejected as unnecessary.

Massachusetts, Connecticut, New Jersey, North Carolina, Georgia, ay, 5; New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, no, 6. The clause referring to the Senate the trial of impeachments against the President, for treason and bribery, was taken up.

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

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

Mr. GOUVERNEUR MORRIS. It will not be put in force, and can do no harm. An election of every four years will prevent maladministration.

Col. MASON withdrew "maladministration," and substituted "other high crimes and misdemeanors against the state."

On the question, thus altered, —

New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina, (in the printed Journal, South Carolina, no,) Georgia, ay, 8; New Jersey, Pennsylvania, Delaware, no, 3.

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

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

Mr. PINCKNEY disapproved of making the Senate the court of impeachments, as rendering the President too dependent on the legislature. If he opposes a favorite law, the two Houses will combine. against him, and, under the influence of heat and faction, throw him out of office.

Mr. WILLIAMSON thought there was more danger of too much