by James Madison

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 following:

“The Legislature may declare by law what officer of the United States 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.”¹

Mr. GOUVERNEUR MORRIS seconded the motion, which was agreed to.

It seemed to be an objection to the provision, with some, that, according to the process established for choosing 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 United States. 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

New Jersey, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, aye, — 6; Massachusetts, Connecticut, Delaware, North Carolina, no, — 4; New Hampshire, divided.

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 seconded the motion.

Mr. READ observed, that the States having but one member only in the House of Representatives 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 inconvenience might yet be provided.

Mr. GERRY withdrew the first part of his motion; and, on the question on the second 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 second Section, (see the 4th of September) requiring that the President should be a natural-born citizen, &c., and have been resident for fourteen years, and be thirty-five years of age, was agreed to, nem. con.

The third Section, “The Vice President shall be ex officio President of the Senate,” being then considered,

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 and Vice President makes it absolutely improper. He was against having any Vice President.

Mr. GOUVERNEUR 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 merely for the sake of a valuable mode of election, which required two to be chosen at the same time.

Colonel MASON thought the office of Vice President an encroachment on the rights of the Senate; and that it mixed too much the Legislative and the Executive, which, as well as the Judiciary department, 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; and 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 department separate and distinct. It would also save the expense of constant sessions of the Senate. He had, he said, always considered the Senate as too unwieldy and 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? —

New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Virginia, South Carolina, Georgia, aye, — 8; New Jersey, Maryland, no, — 2; North Carolina, absent.

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

The fourth Section, to wit: “The President, by and with the advice and consent of the Senate, shall have power to make treaties,” &c., was then taken up.

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. FITZSIMONS seconded the motion of Mr. WILSON, and on the question, —

Pennsylvania, aye, — 1; New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, — 10.

The first sentence, as to making treaties, was then agreed to, nem. con.

On the clause, “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 Colonel MASON; provided its advice should not be made obligatory on the President.

Mr. PINCKNEY 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. GOUVERNEUR 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 Colonel 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 expense as well as influence of the Government.

On the question on these words in the clause, viz: “He shall nominate, and by and with the advice and consent of the Senate, 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, aye, — 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,” it was agreed to, nem. con.

The fourth Section. “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 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 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, aye, — 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 exception as to treaties of peace, — New Hampshire, Massachusetts, Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye, — 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, —

Colonel MASON² 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 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 United 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 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 Colonel MASON.

The motion of Colonel MASON was negatived, —

Maryland, South Carolina, Georgia, aye, — 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.³

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 some other rights, if this principle be established; he moved to extend the motion to “all present rights of the United States.”

Adjourned.

1 In the printed Journal this amendment is put into the original Motion.

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

3 Not so stated in the Printed Journal; but conformable to the result- afterwards appearing.