Chapter XII: Front Matter (12)

M^r 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 & Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be laws of the land, the Legislative, Executive & 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 those 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.

M^r Gov^r Morris expressed his wonder at the observations of M^r 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 M^r Wilsons 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 U. S: 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.

M^r Williamson, replying to M^r Morris, observed that the aristocratic complexion proceeds from the change in the mode of appointing the President which makes him dependent on the Senate.

M^r 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.

M^r Hamilton said that he had been restrained from entering into the discussions by his dislike of the Scheme of Gov^t 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, & continually tempted by this constitutional disqualification to abuse them in order to subvert the Government. Although he should be made re-eligible, 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, & the different districts Northern Middle & 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 & influence, that will perpetuate the President, and aggrandize both him & 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.

M^r Spaight & M^r Williamson moved to insert "seven" instead of "four" years for the term of the President[55]--

[55] An ineligibility w^d have followed (tho' it would seem from
the vote not in the opinion of all) this prolongation of the
term.--Madison's Note.

On this motion

N. H. ay. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no.
V^a ay. N. C. ay. S. C. no. Geo. no.

M^r Spaight & M^r Williamson, then moved to insert "six," instead of "four". On which motion

N. H. no. Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no.
V^a no. N. C. ay. S. C. ay. Geo. no.

On the term "four" all the States were ay, except N. Carolina, no.

On the question (Clause 4. in the Report) for appointing President by electors---down to the words,--"entitled in the Legislature" inclusive

N. H. ay. Mas: ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay.
V^a ay. N. C. no. S. C. no. Geo.--ay.

It was moved that the Electors meet at the seat of the Gen^l Gov^t which passed in the Negative N. C. only being ay.

It was moved to insert the words "under the seal of the State" after the word "transmit" in the 4^{th}. 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 4^{th} Clause of the Report as added yesterday on motion of M^r 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."

M^r 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."

M^r Williamson 2^{ded} the motion, on which all the States were in the negative except N: Carolina.

On motion the words "But the election shall be on the same day throughout the U. S." were added after the words "transmitting their votes"

N. H. ay. Mas. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay.
V^a ay. N. C. ay. S. C. ay. Geo.--ay.

On a question on the sentence in clause (4) "if such number be a majority of that of the Electors appointed"

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a no. Del. ay. M^d ay.
V^a no. N.C. no. S. C. ay. Geo. ay.

On a question on the clause referring the eventual appointment of the President to the Senate

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. ay. V^a ay.
N. C. no. Here the call ceased.

M^r Madison made a motion requiring 2/3 at least of the Senate to be present at the choice of a President. M^r Pinkney 2^{ded} the motion.

M^r Gorham thought it a wrong principle to require more than a majority in any case. In the present case it might prevent for a long time any choice of a President. On the question moved by M^r M. and M^r P.

N. H. ay. Mas. abs^t. C^t no. N. J. no. P^a no. Del. no. M^d ay.
V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r 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_.

M^r Sherman suggested the "House of Rep^s" 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."

Col: Mason liked the latter mode best as lessening the aristocratic influence of the Senate.

On the motion of M^r Sherman

N. H. ay. Mas. ay. C^t ay. N. J. ay. P^a ay. Del. no. M^d ay.
V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r 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 re-eligible 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.)

M^r Madison remarked that as a majority of members w^d make a quorum in the H. of Rep^s it would follow from the amendment of M^r Sherman giving the election to a majority of States, that the President might be elected by two States only, Virg^a & Pen^a which have 18 members, if these States alone should be present.

On a motion that the eventual election of Presid^t in case of _an equality_ of the votes of the electors be referred to the House of Rep^s

N. H. ay. Mas. ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay.
N. C. ay. S. C. ay. Geo. ay.

M^r King moved to add to the amendment of M^r 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."

Col: Mason liked it as obviating the remark of M^r Madison--The motion as far as "States" inclusive was ag^d to. On the residue to wit, "and also of a majority of the whole number of the House of Reps^s." it passed in the negative.

N. H. no. Mas. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no.
V^a ay. N. C. ay. S. C. no. Geo. no.

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 U. S. or who holds any office of profit
or trust under the U. S.

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 & 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,
([56]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.[57]

[56] NOTE.--This clause was not inserted on this day, but on the
7^{th}. of Sep^r--See Friday the 7^{th}.--Madison's Note.

[57] September 6 Madison wrote to Jefferson (cipher represented
by italics): "... As the Convention will shortly rise I
should feel little scruple in disclosing what will be public
here, before it could reach you, were it practicable for me
to guard by Cypher against an intermediate discovery. But I
am deprived of this resource by the shortness of the
interval between the receipt of your letter of June 20 and
the date of this. This is the first day which has been free
from Committee service, both before & after the hours of the
House, and the last that is allowed me by the time
advertised for the sailing of the packet.

"The Convention consists now as it has generally done of
Eleven States. There has been no intermission of its
Sessions since a house was formed, except an interval of
about ten days allowed a Committee appointed to detail the
general propositions agreed on in the House. The term of its
dissolution cannot be more than one or two weeks distant. A
Gover^{mt} will probably be submitted to the _people of_ the
_States_, consisting of a _President_, _cloathed_ with
_Executive power_; a _Senate chosen_ by the _Legislatures_,
and another _House chosen_ by the _people of the States_,
jointly _possessing_ the _Legislative_ power; and a regular
_Judiciary_ establishment. The mode of constituting the
_Executive_ is among the few points not yet finally settled.
The _Senate_ will consist of two _members_ from each
_State_, and _appointed sexennially_. The other, of
_members_, _appointed biennially_ by the _people of the
States_, in proportion to their number. The Legislative
power will _extend to taxation_, trade, and sundry other
general matters. The powers of Congress will be
_distributed_, according to their _nature_, _among the
several departments_. The States will be _restricted from
paper money_ and in a _few other instances_. These are _the
outlines_. The extent of them may perhaps surprize you. I
hazard an opinion nevertheless that the _plan_, _should it
be adopted_, will neither effectually _answer_ its _national
object_, nor prevent the local _mischiefs_ which everywhere
_excite disgusts_ ag^{st} the _State Governments_. The
grounds of this opinion will be the subject of a future
letter.

"I have written to a friend in Cong^s intimating in a covert
manner the necessity of deciding & notifying the intentions
of Cong^s with regard to their foreign Ministers after May
next, and have dropped a hint on the communications of
Dumas.

"Congress have taken some measures for disposing of the
public land, and have actually sold a considerable tract.
Another bargain I learn is on foot for a further sale.

"Nothing can exceed the universal anxiety for the event of
the meeting here. Reports and conjectures abound concerning
the nature of the plan which is to be proposed. The public
however is certainly in the dark with regard to it. The
Convention is equally in the dark as to the reception w^{ch}
may be given to it on its publication. All the
prepossessions are on the right side, but it may well be
expected that certain characters will wage war against any
reform whatever. My own idea is that the public mind will
now or in a very little time receive anything that promises
stability to the public Councils & security to private
rights, and that no regard ought to be had to local
prejudices or temporary considerations. If the present
moment be lost, it is hard to say what may be our fate.

"Our information from Virginia is far from being agreeable.
In many parts of the Country the drought has been extremely
injurious to the Corn. I fear, tho' I have no certain
information, that Orange & Albemarle share in the distress.
The people also are said to be generally discontented. A
paper emission is again a topic among them, so is an
instalment of all debts in some places and the making
property a tender in others. The taxes are another source of
discontent. The weight of them is complained of, and the
abuses in collecting them still more so. In several Counties
the prisons & Court Houses & Clerks' offices have been
wilfully burnt. In Green Briar the course of Justice has
been mutinously stopped, and associations entered into
ag^{st} the payment of taxes. No other County has yet
followed the example. The approaching meeting of the
Assembly will probably allay the discontents on one side by
measures which will excite them on another.

"Mr. Wythe has never returned to us. His lady whose illness
carried him away, died some time after he got home. The
other deaths, in Virg^a are Col. A. Cary and a few days ago,
Mrs. Harrison, wife of Benj^n Harrison, Jun^r, & sister of
J. F. Mercer. Wishing you all happiness.

"I remain, Dear sir, Y^{rs} affect^{ly}.

"Give my best wishes to Mazzei. I have rec^d his letter &
book and will write by the next packet to him. Dorhman is
still in V^a Cong^s have done nothing for him in his affair.
I am not sure that 9 St^s have been assembled of late. At
present, it is doubtful whether there are seven."--Mad. MSS.

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 through-out the U. States."

Adjourned.

FRIDAY SEP^R 7[58] 1787. IN CONVENTION

[58] The following letter was received on this day from Jonas
Phillips, a Jew in Philadelphia:

"SIRES

"With leave and submission I address myself To those in
whome there is wisdom understanding and knowledge. They are
the honourable personages appointed and Made overseers of a
part of the terrestrial globe of the Earth, Namely the 13
united states of america in Convention Assembled, the Lord
preserve them amen--

"I the subscriber being one of the people called Jews of the
City of Philadelphia, a people scattered and despersed among
all nations do behold with Concern that among the laws in
the Constitution of Pennsylvania their is a Clause Sect. 10
to viz--I do belive in one God the Creature and governour of
the universe the Rewarder of the good and the punisher of
the wicked--and I do acknowledge the scriptures of the old
and New testement to be given by a devine inspiration--to
swear and believe that the new testement was given by devine
inspiration is absolutly against the Religious principle of
a Jew and is against his Conscience to take any such
oath--By the above law a Jew is deprived of holding any
publick office or place of Government which is a
Contridectory to the bill of Right Sect 2. viz

"That all men have a natural and unalienable Right To
worship almighty God according to the dectates of their own
Conscience and understanding, and that no man aught or of
Right can be compelled to attend any Religious Worship or
Erect or support any place of worship or Maintain any
minister contrary to or against his own free will and
Consent nor Can any man who acknowledges the being of a God
be Justly deprived or abridged of any Civil Right as a
Citizen on account of his Religious sentiments or peculiar
mode of Religious Worship, and that no authority Can or
aught to be vested in or assumed by any power what ever that
shall in any Case interfere or in any manner Controul the
Right of Conscience in the free Exercise of Religious
Worship--

"It is well known among all the Citizens of the 13 united
States that the Jews have been true and faithfull whigs, and
during the late Contest with England they have been foremost
in aiding and assisting the States with their lifes and
fortunes, they have supported the Cause, have bravely faught
and bleed for liberty which they Can not Enjoy--

Therefore if the honourable Convention shall in ther Wisdom
think fit and alter the said oath and leave out the words to
viz--and I do acknowledge the scripture of the new
testeraent to be given by devine inspiration then the
Israeletes will think them self happy to live under a
government where all Religious societys are on an Eaquel
footing--I solecet this favour for my self my Childreen and
posterity and for the benefit of all the Israeletes through
the 13 united States of america.

"My prayers is unto the Lord. May the people of this States
Rise up as a great and young lion, May they prevail against
their Enemies, May the degrees of honour of his Excellencey
the president of the Convention George Washington, be
Extollet and Raise up. May Every one speak of his glorious
Exploits. May God prolong his days among us in this land of
Liberty--May he lead the armies against his Enemys as he has
done hereuntofore--May God Extend peace unto the united
States--May they get up to the highest Prosperetys--May God
Extend peace to them and their Seed after them so long as
the Sun and moon Endureth--and may the almighty God of our
father Abraham Isaac and Jacob endue this Noble Assembly
with wisdom Judgement and unamity in their Councells, and
may they have the Satisfaction to see that their present
toil and labour for the wellfair of the united States may be
approved of, Through all the world and perticular by the
united States of america is the ardent prayer of Sires.

"Your Most devoted obe^d Servant

"JONAS PHILLIPS

"Philadelphia 24^{th} Ellul 5547 or Sep^r 7^{th}.
1787"--Const. MSS.

The mode of constituting the Executive being resumed, M^r 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."

M^r 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] M^r Gov^r Morris 2^{ded} the motion, which was agreed to.

[59] In the printed Journal this amendment is put into the
original motion.--Madison's Note.

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 M^r Randolph as amended, it passed in the affirmative.

N. H. divided. Mas. no. C^t no. N. J. ay. P^a ay. Del. no.
M^d ay. V^a ay. N. C. no. S. C. ay. Geo. ay.

M^r 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.

M^r Madison 2^{ded} the motion.

M^r Read observed that the States having but one member only in the House of Rep^s 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.

M^r 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.

M^r Gerry withdrew the first part of his motion; and on the, Question on the 2^d 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 Sep^r 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: