University of Virginia Library

Tuesday Sepr. 4. 1787. In Convention

Mr. Brearly from the Committee of eleven made a
further partial Report as follows

"The Committee of Eleven to whom sundry resolutions
&c were referred on the 31st. of August, report

that in their opinion the following additions and alterations
should be made to the Report before the
Convention, viz[50]

(1.)

• The first clause of sect: 1. art. 7. to read as
  follows—'The Legislature shall have power to lay and
  collect taxes duties imposts & excises, to pay the
  debts and provide for the common defence & general
  welfare of the U.S.'

(2.)

• At the end of the 2d. clause of sect. 1. art. 7.
  add 'and with the Indian tribes.'

(3.)

• In the place of the 9th. art. Sect. 1. to be inserted
  '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.'

(4.)

• After the word 'Excellency' in sect. 1. art. 10.
  to be inserted. 'He shall hold his office during the
  term of four years, and together with the Vice-President,
  chosen for the same term, be elected in
  the following manner, viz. Each State shall appoint
  in such manner as its Legislature may direct, a number
  

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  of electors equal to the whole number of Senators
  and members of the House of Representatives, to
  which the State may be entitled in the Legislature.
  The Electors shall meet in their respective States,
  and vote by ballot for two persons, of whom one at
  least shall not be an inhabitant of the same State
  with themselves; and they shall make a list of all
  the persons voted for, and of the number of votes
  for each, which list they shall sign and certify and
  transmit sealed to the Seat of the Genl. Government,
  directed to the President of the Senate—The President
  of the Senate shall in that House open all
  the certificates, and the votes shall be then & there
  counted. The Person having the greatest number of
  votes shall be the President, if such number be a
  majority of that of the electors; and if there be more
  than one who have such a majority, and have an
  equal number of votes, then the Senate shall immediately
  choose by ballot one of them for President:
  but if no person have a majority, then from the five
  highest on the list, the Senate shall choose by ballot
  the President, and in every case after the choice of
  the President, the person having the greatest number
  of votes shall be vice-president: but if there
  should remain two or more who have equal votes,
  the Senate shall choose from them the Vice-President.
  The Legislature may determine the time of
  choosing and assembling the Electors, and the manner
  of certifying and transmitting their votes.'

(5)

• 'Sect. 2. No person except a natural born
  citizen or a Citizen of the U. S. at the time of the
  

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  adoption of this Constitution shall be eligible to the
  office of President; nor shall any person be elected
  to that office, who shall be under the age of thirty
  five years, and who has not been in the whole, at
  least fourteen years a resident within the U. S.'

(6)

• 'Sect. 3. The vice-president shall be ex officio
  President of the Senate, except when they sit to try
  the impeachment of the President, in which case the
  Chief Justice shall preside, and excepting also when
  he shall exercise the powers and duties of President,
  in which case & in case of his absence, the Senate
  shall chuse a President pro tempore—The vice President
  when acting as President of the Senate shall
  not have a vote unless the House be equally divided.'

(7)

• '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 shall be made without
  the consent of two thirds of the members present.'

(8)

• After the words—"into the service of the U.
  S." in sect. 2. art: 10. add '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.'

  The latter part of Sect. 2. art: 10. to read as follows.

(9)

• 'He shall be removed from his office on
  

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  impeachment by the House of Representatives, and
  conviction by the Senate, for Treason, or bribery,
  and in case of his removal as aforesaid, death, absence,
  resignation or inability to discharge the powers
  or duties of his office, the vice-president shall
  exercise those powers and duties until another President
  be chosen, or until the inability of the President
  be removed'

The (1st.) clause of the Report was agreed to, nem.
con.

The (2) clause was also agreed to nem: con:

The (3) clause was postponed in order to decide
previously on the mode of electing the President.

The (4) clause was accordingly taken up.

Mr. Gorham disapproved of making the next highest
after the President, the vice-President, without
referring the decision to the Senate in case the next
highest should have less than a majority of votes.
As the regulation stands a very obscure man with
very few votes may arrive at that appointment

Mr. Sherman said the object of this clause of the
report of the Committee was to get rid of the ineligibility,
which was attached to the mode of election
by the Legislature, & to render the Executive independent
of the Legislature. As the choice of the
President was to be made out of the five highest,
obscure characters were sufficiently guarded against
in that case; and he had no objection to requiring
the vice-President to be chosen in like manner,
where the choice was not decided by a majority in
the first instance

Mr. Madison was apprehensive that by requiring
both the President & vice President to be chosen out
of the five highest candidates, the attention of the
electors would be turned too much to making candidates
instead of giving their votes in order to a
definitive choice. Should this turn be given to the
business, The election would, in fact be consigned to
the Senate altogether. It would have the effect at
the same time, he observed, of giving the nomination
of the candidates to the largest States.

Mr. Govr. Morris concurred in, & enforced the remarks
of Mr. Madison.

Mr. Randolph & Mr. Pinkney wished for a particular
explanation & discussion of the reasons for changing
the mode of electing the Executive.

Mr. Govr. Morris said he would give the reasons of
the Committee and his own. The 1st. was the danger
of intrigue & faction if the appointmt. should be made
by the Legislature. 2 the inconveniency of an ineligibility
required by that mode in order to lessen
its evils. 3. The difficulty of establishing a Court of
Impeachments, other than the Senate which would
not be so proper for the trial nor the other branch
for the impeachment of the President, if appointed
by the Legislature. 4. Nobody had appeared to be
satisfied with an appointment by the Legislature. 5.
Many were anxious even for an immediate choice by
the people. 6. the indispensable necessity of making
the Executive independent of the Legislature.—As
the Electors would vote at the same time throughout
the U. S. and at so great a distance from each other,

the great evil of cabal was avoided. It would be impossible
also to corrupt them. A conclusive reason
for making the Senate instead of the Supreme Court
the Judge of impeachments, was that the latter was to
try the President after the trial of the impeachment.

Col: Mason confessed that the plan of the Committee
had removed some capital objections, particularly
the danger of cabal and corruption. It
was liable however to this strong objection, that
nineteen times in twenty the President would be
chosen by the Senate, an improper body for the
purpose

Mr. Butler thought the mode not free from objections,
but much more so than an election by the
Legislature, where as in elective monarchies, cabal
faction & violence would be sure to prevail.

Mr. Pinkney stated as objections to the mode 1.
that it threw the whole appointment in fact into the
hands of the Senate. 2. The Electors will be strangers
to the several candidates and of course unable
to decide on their comparative merits. 3. It makes
the Executive reeligible which will endanger the
public liberty. 4. It makes the same body of men
which will in fact elect the President his Judges in
case of an impeachment.

Mr. Williamson had great doubts whether the advantage
of reeligibility would balance the objection
to such a dependence of the President on the Senate
for his reappointment. He thought at least the
Senate ought to be restrained to the two highest on
the list

Mr. Govr. Morris said the principal advantage aimed
at was that of taking away the opportunity for cabal.
The President may be made if thought necessary ineligible
on this as well as on any other mode of election.
Other inconveniences may be no less redressed
on this plan than any other.

Mr. Baldwin thought the plan not so objectionable
when well considered, as at first view. The increasing
intercourse among the people of the States,
would render important characters less & less unknown;
and the Senate would consequently be less
& less likely to have the eventual appointment
thrown into their hands.

Mr. Wilson. This subject has greatly divided the
House, and will also divide the people out of doors.
It is in truth the most difficult of all on which we
have had to decide. He had never made up an
opinion on it entirely to his own satisfaction. He
thought the plan on the whole a valuable improvement
on the former. It gets rid of one great evil,
that of cabal & corruption; & Continental Characters
will multiply as we more & more coalesce, so as to
enable the electors in every part of the Union to
know & judge of them. It clears the way also for a
discussion of the question of re-eligibility on its own
merits which the former mode of election seemed to
forbid. He thought it might be better however to
refer the eventual appointment to the Legislature
than to the Senate, and to confine it to a smaller
number than five of the Candidates. The eventual
election by the Legislature wd. not open cabal anew,

as it would be restrained to certain designated objects
of choice, and as these must have had the previous
sanction of a number of the States; and if the
election be made as it ought as soon as the votes of
the Electors are opened & it is known that no one
has a majority of the whole there can be little danger
of corruption. Another reason for preferring
the Legislature to the Senate in this business was
that the House of Reps. will be so often changed as
to be free from the influence & faction to which
the permanence of the Senate may subject that
branch.

Mr. Randolph preferred the former mode of constituting
the Executive, but if the change was to be
made, he wished to know why the eventual election
was referred to the Senate and not to the Legislature?
He saw no necessity for this and many objections to
it. He was apprehensive also that the advantage of
the eventual appointment would fall into the hands
of the States near the seat of Government.

Mr. Govr. Morris said the Senate was preferred because
fewer could then say to the President, you owe
your appointment to us. He thought the President
would not depend so much on the Senate for his reappointment
as on his general good conduct.

The further consideration of the Report was postponed
that each member might take a copy of the
remainder of it.

The following motion was referred to the Committee
of Eleven—to wit,—"To prepare & report a plan
for defraying the expences of the Convention"

[51] Mr. Pinkney moved a clause declaring "that each
House should be judge of the privilege of its own
members." Mr. Govr. Morris 2ded. the motion

Mr. Randolph & Mr. Madison expressed doubts as to
the propriety of giving such a power, & wished for a
postponement.

Mr. Govr. Morris thought it so plain a case that no
postponement could be necessary.

Mr. Wilson thought the power involved, and the
express insertion of it needless. It might beget doubts
as to the power of other public bodies, as Courts &c.
Every Court is the judge of its own privileges.

Mr. Madison distinguished between the power of
Judging of privileges previously & duly established,
and the effect of the motion which would give a discretion
to each House as to the extent of its own
privileges. He suggested that it would be better to
make provision for ascertaining by law, the privileges
of each House, than to allow each House to decide
for itself. He suggested also the necessity of
considering what privileges ought to be allowed to
the Executive.

Adjourned