University of Virginia Library

Friday Sepr. 7[58] 1787. In Convention

The mode of constituting the Executive being resumed,
Mr. Randolph moved, to insert in the first
section of the report made yesterday

"The Legislature may declare by law what officer
of the U. S. shall act as President in case of the
death, resignation, or disability of the President and
Vice-President; and such officer shall act accordingly
until the time of electing a President shall arrive."

Mr. Madison observed that this, as worded, would
prevent a supply of the vacancy by an intermediate

election of the President, and moved to substitute—
"until such disability be removed, or a President
shall be elected.[59] Mr. Govr. Morris 2ded. the motion,
which was agreed to.

It seemed to be an objection to the provision with
some, that according to the process established for
chusing the Executive, there would be difficulty in
effecting it at other than the fixed periods; with
others, that the Legislature was restrained in the
temporary appointment to "officers" of the U. S.:

They wished it to be at liberty to appoint others
than such.

On the Motion of Mr. Randolph as amended, it
passed in the affirmative

N. H. divided. Mas. no. Ct. no. N. J. ay. Pa.
ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. ay.
Geo. ay.

Mr. Gerry moved "that in the election of President
by the House of Representatives, no State shall
vote by less than three members, and where that
number may not be allotted to a State, it shall be
made up by its Senators; and a concurrence of a
majority of all the States shall be necessary to make
such choice." Without some such provision five individuals
might possibly be competent to an election;
these being a majority of two thirds of the
existing number of States; and two thirds being a
quorum for this business.

Mr. Madison 2ded. the motion

Mr. Read observed that the States having but one
member only in the House of Reps. would be in danger
of having no vote at all in the election: the
sickness or absence either of the Representative or
one of the Senators would have that effect.

Mr. Madison replied that, if one member of the
House of Representatives should be left capable of
voting for the State, the states having one Representative
only would still be subject to that danger.
He thought it an evil that so small a number at any
rate should be authorized to elect. Corruption would
be greatly facilitated by it. The mode itself was

liable to this further weighty objection that the representatives
of a Minority of the people, might reverse
the choice of a majority of the States and of the
people. He wished some cure for this inconveniency
might yet be provided.

Mr. Gerry withdrew the first part of his motion;
and on the, Question on the 2d. part viz: "and a concurrence
of a majority of all the States shall be necessary
to make such choice" to follow the words "a
member or members from two thirds of the States"
—It was agreed to nem: con:

The section 2. (see Sepr. 4) requiring that the
President should be a natural-born Citizen &c, &
have been resident for fourteen years, & be thirty
five years of age, was agreed to nem: con:

Section 3 (see Sepr. 4). "The vice President shall
be ex-officio President of the Senate"

Mr. Gerry opposed this regulation. We might as
well put the President himself at the head of the
Legislature. The close intimacy that must subsist
between the President & vice-president makes it absolutely
improper. He was agst. having any vice
President.

Mr. Govr. Morris. The vice President then will be
the first heir apparent that ever loved his father. If
there should be no vice president, the President of
the Senate would be temporary successor, which
would amount to the same thing.

Mr. Sherman saw no danger in the case. If the
vice-President were not to be President of the Senate,
he would be without employment, and some

member by being made President must be deprived
of his vote, unless when an equal division of votes
might happen in the Senate, which would be but
seldom.

Mr. Randolph concurred in the opposition to the
clause.

Mr. Williamson, observed that such an officer as
vice-President was not wanted. He was introduced
only for the sake of a valuable mode of election
which required two to be chosen at the same time.

Col: Mason, thought the office of vice-President an
encroachment on the rights of the Senate; and that
it mixed too much the Legislative & Executive,
which as well as the Judiciary departments, ought
to be kept as separate as possible. He took occasion
to express his dislike of any reference whatever of
the power to make appointments, to either branch
of the Legislature. On the other hand he was
averse to vest so dangerous a power in the President
alone. As a method for avoiding both, he suggested
that a privy Council of six members to the
president should be established; to be chosen for
six years by the Senate, two out of the Eastern two
out of the middle, and two out of the Southern
quarters of the Union, & to go out in rotation two
every second year; the concurrence of the Senate
to be required only in the appointment of Ambassadors,
and in making treaties, which are more of a
legislative nature. This would prevent the constant
sitting of the Senate which he thought dangerous,
as well as keep the departments separate & distinct.

It would also save the expence of constant sessions of
the Senate. He had he said always considered the
Senate as too unwieldy & expensive for appointing
officers, especially the smallest, such as tide waiters
&c. He had not reduced his idea to writing, but it
could be easily done if it should be found acceptable.

On the question shall the vice President be ex
officio President of the Senate? N. H. ay. Mas. ay.
Ct. ay. N. J. no. Pa. ay. Del. ay. Mar. no. Va.
ay. N. C. abst. S. C. ay. Geo. ay.

The other parts of the same Section (3) were then
agreed to.

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. Fitzimmons 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. ay. N. C. no.
S. C. no. Geo. no.

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 cannot
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 inconveniences
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.

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" 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 clause being before the House.

Mr. Wilson thought it objectionable to require the
concurrence of 2/3 which puts it into 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.

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.

"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[60] 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 Signer himself had his Divan.

He moved to postpone the consideration of the
clause 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 Executive Council, as a Council of State
for the President of the U. States, to consist of six
members, two of which from the Eastern, two from
the middle, and two from the Southern States, 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."

Doctor Franklin 2ded. 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 shewed that caprice,
the intrigues of favorites & 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 G. B. 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. Govr. Morris. The question of a Council was
considered in the Committee, where it was judged
that the Presidt. 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 appointmts.

Mr. Dickinson was for a Council. It wd. 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.

The motion of Mr. Mason was negatived. Mayd.
ay. S. C. ay. Geo. ay—N. H. no. Mas. no.
Ct. no. N. J. no Pa. no. Del. no. Va. no. N. C.
no

On the question, "authorizing the President to
call for the opinions of the Heads of Departments, in
writing": it passed in the affirmative N. H. only
being no.[61]

The clause was then unanimously agreed to—

Mr. Williamson & Mr. Spaight moved "that no
Treaty of peace affecting Territorial rights shd. 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 some other rights, if this principle be
established; he moved to extend the motion—"to
all present rights of the U. States."

Adjourned.