by James Madison
Friday, August 24
In Convention, — Governor LIVINGSTON, from the Committee of eleven, to whom were referred the two remaining clauses of the fourth Section, and the fifth and sixth Sections of the seventh Article, delivered in the following Report:
“Strike out so much of the fourth Section as was referred to the Committee, and insert, ‘The migration or importation of such persons as the several States, now existing, shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.’
“The fifth Section to remain as in the Report.
“The sixth Section to be stricken out.”
Mr. BUTLER according to notice, moved that the first clause of Article 7, Sect. 1, as to the discharge of debts, be reconsidered to-morrow. He dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders.
General PINCKNEY seconded him.
Mr. RANDOLPH wished for a reconsideration, in order to better the expression, and to provide for the case of the State debts as is done by Congress.
On the question for reconsidering, —
Massachusetts, Connecticut, New Jersey, Delaware, Virginia, South Carolina, Georgia, aye, — 7; New Hampshire, Maryland, no, — 2; Pennsylvania, North Carolina, absent.
And to-morrow assigned for the reconsideration.
The second and third Sections of Article 9, being taken up,—
Mr. RUTLEDGE said, this provision for deciding controversies between the States was necessary under the Confederation, but will be rendered unnecessary by the National Judiciary now to be established; and moved to strike it out.
Doctor JOHNSON seconded the motion.
Mr. WILLIAMSON was for postponing instead of striking out, in order to consider whether this might not be a good provision, in cases where the Judiciary were interested, or too closely connected with the parties.
Mr. GORHAM had doubts as to striking out. The Judges might be connected with the States being parties. He was inclined to think the mode proposed in the clause would be more satisfactory than to refer such cases to the Judiciary.
On the question for postponing the second and third sections, it passed in the negative, —
New Hampshire, North Carolina, Georgia, aye, — 3; Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, South Carolina, no, — 7; Pennsylvania, absent.
Mr. WILSON urged the striking out, the Judiciary being a better provision.
On the question for striking out the second and third Sections of Article 9, —
New Hampshire, Connecticut, New Jersey, Delaware, Maryland, Virginia, South Carolina, aye, — 8; North Carolina, Georgia, no, — 2; Pennsylvania, absent.
Article 10, Sect. 1. “The Executive power of the United States shall be vested in a single person. His style shall be ‘The President of the United States of America,’ and his title shall be ‘His Excellency.’ He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time.”
On the question for vesting the power in a single person, — it was agreed to, nem. con. So also on the style and title.
Mr. RUTLEDGE moved to insert, “joint,” before the word, “ballot,” as the most convenient mode of electing.
Mr. SHERMAN objected to it, as depriving the States, represented in the Senate, of the negative intended them in that House.
Mr. GORHAM said it was wrong to be considering, at every turn, whom the Senate would represent. The public good was the true object to be kept in view. Great delay and confusion would ensue, if the two Houses should vote separately, each having a negative on the choice of the other.
Mr. DAYTON. It might be well for those not to consider how the Senate was constituted, whose interest it was to keep it out of sight. If the amendment should be agreed to, a joint ballot would in fact give the appointment to one House. He could never agree to the clause with such an amendment. There could be no doubt of the two Houses separately concurring in the same person for President. The importance and necessity of the case would insure a concurrence.
Pennsylvania, Delaware, aye, — 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Maryland, Virginia, North Carolina, South Carolina, Georgia, no, — 9.
Mr. BREARLY was opposed to inserting the word “joint.” The argument, that the small States should not put their hands into the pockets of the large ones, did not apply in this case.
Mr. WILSON urged the reasonableness of giving the larger States a larger share of the appointment, and the danger of delay from a disagreement of the two Houses. He remarked, also, that the Senate had peculiar powers balancing the advantage given by a joint ballot in this case to the other branch of the Legislature.
Mr. LANGDON. This general officer ought to be elected by the joint and general voice. In New Hampshire the mode of separate votes by the two Houses was productive of great difficulties. The negative of the Senate would hurt the feelings of the man elected by the votes of the other branch. He was for inserting “joint,” though unfavorable to New Hampshire as a small State.
Mr. WILSON remarked, that as the President of the Senate was to be the President of the United States, that body, in cases of vacancy, might have an interest in throwing dilatory obstacles in the way, if its separate concurrence should be required.
Mr. MADISON. If the amendment be agreed to, the rule of voting will give to the largest State, compared with the smallest, an influence as four to one only, although the population is as ten to one. This surely cannot be unreasonable, as the President is to act for the people, not for the States. The President of the Senate also is to be occasionally President of the United States, and by his negative alone can make three fourths of the other branch necessary to the passage of a law. This is another advantage enjoyed by the Senate.
On the question for inserting “joint,” it passed in the affirmative, —
New Hampshire, Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, aye, — 7; Connecticut, New Jersey, Maryland, Georgia, no, — 4.
Mr. DAYTON then moved to insert, after the word “Legislature,” the words, “each State having one vote.”
Mr. BREARLY seconded him; and, on the question, it passed in the negative, — Connecticut, New Jersey, Delaware, Maryland, Georgia, aye, — 5; New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, no, — 6.
Mr. PINCKNEY moved to insert, after the word “Legislature,” the words, “to which election a majority of the votes of the members present shall be required.”
And on this question, it passed in the affirmative, — New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, — 10; New Jersey, no, — 1.
Mr. READ moved, that, “in case the numbers for the two highest in votes should be equal, then the President of the Senate shall have an additional casting vote,” which was disagreed to by a general negative.
Mr. GOUVERNEUR MORRIS opposed the election of the President by the Legislature. He dwelt on the danger of rendering the Executive uninterested in maintaining the rights of his station, as leading to legislative tyranny. If the Legislature have the Executive dependent on them, they can perpetuate and support their usurpations by the influence of tax-gatherers and other officers, by fleets, armies, &c. Cabal and corruption are attached to that mode of election. So is ineligibility a second time. Hence the Executive is interested in courting popularity in the Legislature, by sacrificing his Executive rights; and then he can go into that body, after the expiration of his Executive office, and enjoy there the fruits of his policy. To these considerations he added, that rivals would be continually intriguing to oust the President from his place. To guard against all these evils, he moved that the President “shall be chosen by Electors to be chosen by the people of the several States.”
Mr. CARROLL seconded him; and, on the question, it passed in the negative, — Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, aye, — 5; New Hampshire, Massachusetts, Maryland, North Carolina, South Carolina, Georgia, no, — 6.
Mr. DAYTON moved to postpone the consideration of the two last clauses of Article 10, Sect. 1, which was disagreed to without a count of the States.
Mr. BROOM moved to refer the two clauses to a committee, of a member from each State; and on the question, it failed, the States being equally divided, —
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye, — 5; New Hampshire, Massachusetts, North Carolina, South Carolina, Georgia, no, — 5; Connecticut, divided.
On the question taken on the first part of Mr. GOUVERNEUR MORRIS’S motion, to wit: “shall be chosen by electors,” as an abstract question, it failed, the States being equally divided, —
New Jersey, Pennsylvania, Delaware, Virginia, aye, — 4; New Hampshire, North Carolina, South Carolina, Georgia, no, — 4; Connecticut, Maryland, divided; Massachusetts, absent.
The consideration of the remaining clauses of Article 10, Sect. 1, was then postponed till to-morrow, at the instance of the Deputies of New Jersey.
Article 10, Sect. 2, being taken up, the word “information” was transferred, and inserted after “Legislature.”
On motion of Mr. GOUVERNEUR MORRIS, “he may,” was struck out, and “and” inserted before “recommend,” in the second clause of Article 10, Sect. 2, in order to make it the duty of the President to recommend, and thence prevent umbrage or cavil at his doing it.
Mr. SHERMAN objected to the sentence, “and shall appoint officers in all cases not otherwise provided for in this Constitution.” He admitted it to be proper that many officers in the Executive department should be so appointed; but contended that many ought not, — as general officers in the army, in time of peace, &c. Herein lay the corruption in Great Britain. If the Executive can model the army, he may set up an absolute government; taking advantage of the close of a war, and an army commanded by his creatures. James the Second was not obeyed by his officers, because they had been appointed by his predecessors, not by himself. He moved to insert, “or by law,” after the word “constitution.”
On motion of Mr. MADISON, “officers” was struck out, and “to offices” inserted, in order to obviate doubts that he might appoint officers without a previous creation of the offices by the Legislature.
On the question for inserting, “or by law,” as moved by Mr. SHERMAN, — Connecticut, aye, — 1; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, no, — 9; North Carolina, absent.
Mr. DICKINSON moved to strike out the words “and shall appoint to offices in all cases not otherwise provided for by this Constitution;” and insert, “and shall appoint to all offices established by this Constitution, except in cases herein otherwise provided for; and to all offices which may hereafter be created by law.”
Mr. RANDOLPH observed, that the power of appointments was a formidable one both in the Executive and Legislative hands; and suggested whether the Legislature should not be left at liberty to refer appointments, in some cases, to some State authority.
Mr. DICKINSON’S motion passed in the affirmative, —
Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, Georgia, aye, — 6; New Hampshire, Massachusetts, Delaware, South Carolina, no, — 4; North Carolina, absent.
Mr. DICKINSON then moved to annex to his last amendment, “except where by law the appointment shall be vested in the Legislatures or Executives of the several States.”
Mr. RANDOLPHseconded the motion.
Mr. WILSON. If this be agreed to, it will soon be a standing instruction to the State Legislatures to pass no law creating offices, unless the appointment be referred to them.
Mr. SHERMAN objected to “Legislatures,” in the motion, which was struck out by consent of the movers.
Mr. GOUVERNEUR MORRIS. This would be putting it in the power of the States to say, “you shall be viceroys, but we will be viceroys over you.”
The motion was negatived without a count of the States.
Ordered unanimously, that the order respecting the adjournment at four o’clock be repealed, and that in future the House assemble at ten o’clock, and adjourn at three.