Thursday, September 6 | Debates in the Federal Convention of 1787
by James Madison
In Convention, — Mr. KING and Mr. GERRY moved to insert in the fourth clause of the Report, after the words, “may be entitled in the Legislature,” the words following: “But no person shall be appointed an Elector who is a member of the Legislature of the United States, or who holds any office of profit or trust under the United States”; which passed, nem. con.
Mr. GERRY proposed, as the President was to be elected by the Senate out of the five highest candidates, that if he should not at the end of his term be reëlected by a majority of the Electors, and no other candidate should have a majority, the eventual election should be made by the Legislature. This, he said, would relieve the President from his particular dependence on the Senate for his continuance in office.
Mr. KING liked the idea, as calculated to satisfy particular members, and promote unanimity; and as likely to operate but seldom.
Mr. READ opposed it; remarking, that if individual members were to be indulged, alterations would be necessary to satisfy most of them.
Mr. WILLIAMSON espoused it, as a reasonable precaution against the undue influence of the Senate.
Mr. SHERMAN liked the arrangement as it stood, though he should not be averse to some amendments. He thought, he said, that if the Legislature were to have the eventual appointment, instead of the Senate, it ought to vote in the case by States, — in favor of the small States, as the large states would have so great an advantage in nominating the candidates.
Mr. GOUVERNEUR MORRIS thought favorably of Mr. GERRY’S proposition. It would free the President from being tempted, in naming to offices, to conform to the will of the Senate, and thereby virtually give the appointments to office to the Senate.
Mr. WILSON said, that he had weighed carefully the Report of the Committee for remodelling the constitution of the Executive; and on combining it with other parts of the plan, he was obliged to consider the whole as having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate. They will have, in fact, the appointment of the President, and, through his dependence on them, the virtual appointment to offices; among others, the officers of the Judiciary department. They are to make treaties; and they are to try all impeachments. In allowing them thus to make the Executive and Judiciary appointments, to be the court of impeachments, and to make treaties which are to be laws of the land, the Legislative, Executive, and Judiciary powers are all blended in one branch of the Government. The power of making treaties involves the case of subsidies, and here, as an additional evil, foreign influence is to be dreaded. According to the plan as it now stands, the President will not be the man of the people, as he ought to be; but the minion of the Senate. He cannot even appoint a tide-waiter without the Senate. He had always thought the Senate too numerous a body for making appointments to office. The Senate will, moreover, in all probability, be in constant session. They will have high salaries. And with all these powers, and the President in their interest, they will depress the other branch of the Legislature, and aggrandize themselves in proportion. Add to all this, that the Senate, sitting in conclave, can by holding up to their respective States various and improbable candidates, contrive so to scatter their votes, as to bring the appointment of the President ultimately before themselves. Upon the whole, he thought the new mode of appointing the President, with some amendments, a valuable improvement; but he could never agree to purchase it at the price of the ensuing parts of the Report, nor befriend a system of which they make a part.
Mr. GOUVERNEUR MORRIS expressed his wonder at the observations of Mr. WILSON, so far as they preferred the plan in the printed Report to the new modification of it before the House; and entered into a comparative view of the two, with an eye to the nature of Mr. WILSON’S objections to the last. By the first, the Senate, he observed, had a voice in appointing the President out of all the citizens of the United States; by this they were limited to five candidates, previously nominated to them, with a probability of being barred altogether by the successful ballot of the Electors. Here, surely was no increase of power. They are now to appoint Judges, nominated to them by the President. Before, they had the appointment without any agency whatever of the President. Here again was surely no additional power. If they are to make treaties, as the plan now stands, the power was the same in the printed plan. If they are to try impeachments, the Judges must have been triable by them before. Wherein, then, lay the dangerous tendency of the innovations to establish an aristocracy in the Senate? As to the appointment of officers, the weight of sentiment in the House was opposed to the exercise of it by the President alone; though it was not the case with himself. If the Senate would act as was suspected, in misleading the States into a fallacious disposition of their votes for a President, they would, if the appointment were withdrawn wholly from them, make such representations in their several States where they have influence, as would favor the object of their partiality.
Mr. WILLIAMSON, replying to Mr. MORRIS, observed, that the aristocratic complexion proceeds from the change in the mode of appointing the President, which makes him dependent on the Senate.
Mr. CLYMER said, that the aristocratic part, to which he could never accede, was that, in the printed plan, which gave the Senate the power of appointing to offices.
Mr. HAMILTON said, that he had been restrained from entering into the discussions, by his dislike of the scheme of government in general; but as he meant to support the plan to be recommended, as better than nothing, he wished in this place to offer a few remarks. He liked the new modification, on the whole, better than that in the printed Report. In this, the President was a monster, elected for seven years, and ineligible afterwards; having great powers in appointments to office; and continually tempted, by this constitutional disqualification, to abuse them in order to subvert the Government. Although he should be made reëligible, still, if appointed by the Legislature, he would be tempted to make use of corrupt influence to be continued in office. It seemed peculiarly desirable, therefore, that some other mode of election should be devised. Considering the different views of different States, and the different districts, Northern, Middle, and Southern, he concurred with those who thought that the votes would not be concentered, and that the appointment would consequently, in the present mode, devolve on the Senate. The nomination to offices will give great weight to the President. Here, then, is a mutual connexion and influence, that will perpetuate the President, and aggrandize both him and the Senate. What is to be the remedy? He saw none better than to let the highest number of ballots, whether a majority or not, appoint the President. What was the objection to this? Merely that too small a number might appoint. But as the plan stands, the Senate may take the candidate having the smallest number of votes, and make him President.
Mr. SPAIGHT and Mr. WILLIAMSON moved to insert “seven,” instead of “four” years, for the term of the President.1
On this motion, —
New Hampshire, Virginia, North Carolina, aye, — 3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, no, — 8.
Mr. SPAIGHT and Mr. WILLIAMSON then moved to insert “six;” instead of “four.”
On which motion, —
North Carolina, South Carolina, aye, — 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Georgia, no, — 9.
On the term “four” all the States were aye, except North Carolina, no.
On the question on the fourth clause in the Report, for appointing the President by Electors, down to the words, “entitled in the Legislature,” inclusive, —
New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Georgia, aye, — 9; North Carolina, South Carolina, no, — 2.
It was moved, that the Electors meet at the seat of the General Government; which passed in the negative, — North Carolina only being, aye.
It was then moved to insert the words, “under the seal of the State,” after the word “transmit,” in the fourth clause of the Report; which was disagreed to; as was another motion to insert the words, “and who shall have given their votes,” after the word “appointed,” in the fourth clause of the Report, as added yesterday on motion of Mr. DICKINSON.
On several motions, the words, “in presence of the Senate and House of Representatives,” were inserted after the word “counted”; and the word “immediately,” before the word “choose”; and the words, “of the electors,” after the word “votes.”
Mr. SPAIGHT said, if the election by Electors is to be crammed down, he would prefer their meeting altogether, and deciding finally without any reference to the Senate; and moved, “that the Electors meet at the seat of the General Government.”
Mr. WILLIAMSON seconded the motion; on which all the States were in the negative, except North Carolina.
On motion, the words, “But the election shall be on the same day throughout the United States,” were added after the words, “transmitting their votes.”
New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 8; Massachusetts, New Jersey, Delaware, no, — 3.
On the question on the sentence in the fourth clause, “if such number be a majority of that of the Electors appointed,”—
New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, South Carolina, Georgia, aye, — 8; Pennsylvania, Virginia, North Carolina, no, — 3.
On a question on the clause referring the eventual appointment of the President to the Senate, —
New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, ay, — 7; North Carolina, no. Here the call ceased.
Mr. MADISON, made a motion requiring two thirds at least of the Senate to be present at the choice of a President.
Mr. PINCKNEY seconded the motion.
Mr. GORHAM thought it a wrong principle to require more than a majority in any case. In the present, it might prevent for a long time any choice of a President.
On the question moved by Mr. MADISON and Mr. PINCKNEY, —
New Hampshire, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 6; Connecticut, New Jersey, Pennsylvania, Delaware, no, — 4; Massachusetts, absent.
Mr. WILLIAMSON suggested, as better than an eventual choice by the Senate, that this choice should be made by the Legislature, voting by States and not per capita.
Mr. SHERMAN suggested, “the House of Representatives,” as preferable to “the legislature”; and moved accordingly, to strike out the words, “The Senate shall immediately choose,” &c. and insert: “The House of Representatives shall immediately choose by ballot one of them for President, the members from each State having one vote.”
Colonel MASON liked the latter mode best, as lessening the aristocratic influence of the Senate.
On the motion of Mr. SHERMAN, —
New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 10; Delaware, no, — 1.
Mr. GOUVERNEUR MORRIS suggested the idea of providing that, in all cases, the President in office should not be one of the five candidates; but be only reëligible in case a majority of the Electors should vote for him. [This was another expedient for rendering the President independent of the Legislative body for his continuance in office.]
Mr. MADISON remarked, that as a majority of members would make a quorum in the House of Representatives, it would follow from the amendment of Mr. SHERMAN, giving the election to a majority of States, that the President might be elected by two States only, Virginia and Pennsylvania, which have eighteen members, if these States alone should be present.
On a motion, that the eventual election of President, in case of an equality of the votes of the Electors, be referred to the House of Representatives, —
New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye, — 7; New Jersey, Delaware, Maryland, no, — 3.
Mr. KING moved to add to the amendment of Mr. SHERMAN, “But a quorum for this purpose shall consist of a member or members from two thirds of the States, and also of a majority of the whole number of the House of Representatives.”
Colonel MASON liked it, as obviating the remark of Mr. MADISON.
The motion, as far as “States,” inclusive, was agreed to. On the residue, to wit: “and also of a majority of the whole number of the House of Representatives,” it passed in the negative, —
Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, aye, — 5; New Hampshire, New Jersey, Delaware, Maryland, South Carolina, Georgia, no, — 6.
The Report relating to the appointment of the Executive stands, as amended, as follows:
“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:
“Each State shall appoint, in such manner as its Legislature may direct, a number 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.
“But no person shall be appointed an elector who is a member of the Legislature of the United States, or who holds any office of profit or trust under the United States.
“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 General Government, directed to the President of the Senate.
“The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.
“The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; the representation from each State having one vote. But if no person have a majority, then from the five highest on the list the House of Representatives shall, in like manner, choose by ballot the President. In the choice of a President by the House of Representatives, a quorum shall consist of a member or members from two thirds of the States, (2 and the concurrence of a majority of all the States shall be necessary to such choice.) And in every case after the choice of the President, the person having the greatest number of votes of the electors shall be the 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 the electors, and of their giving their votes; and the manner of certifying and transmitting their votes; but the election shall be on the same day throughout the United States.”
1 An ineligibility would have followed (though it would seem from the vote, not in the opinion of all) this prolongation of the term.
2 This clause was not inserted on this day, but on the seventh of September.