Journal of the Federal Convention September 6th 1787

Presidential Elections. James Wilson Speech. Aristocratic Senate. Hamilton Speech. Electors. Same Day Election Throughout US.

Mr. KING and Mr. GERRY moved to insert in the (4) [FN2] clause of the Report (see Sepr. 4 [FN3]) 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 U. S. or who holds any office of profit or trust under the U. S." 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 re-elected 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 & promote unanimity, & 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. Govr. 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, & 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 offices 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.

Mr. Govr. 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. 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 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 Govt. 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 desireable 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 connection & 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.

Mr. SPAIGHT & Mr. WILLIAMSON moved to insert "seven" instead of "four" years for the term of the President- [FN4]

On this motion N. H. ay. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. ay. S. C. no. Geo. no. [FN5]

On which motion N. H. no. Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. ay. S. C. ay. Geo. no [FN6]

On the question [FN7] (Clause 4. in the Report) for Appointing [FN8] President by electors-down to the words,-"entitled in the Legislature" inclusive.

N. H. ay. Mas: ay. Cont. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. ay. [FN9]

It was moved that the Electors meet at the seat of the Genl. Govt. which passed in the Negative. N. C. only being ay.

It was [FN10] moved to insert the words "under the seal of the State" after the word "transmit" in [FN8] 4th 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 4th. 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 2ded. 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. Ct. ay. N. J. no. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo-ay. [FN11]

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. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. ay. [FN12]

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

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. ay. Va. ay. N. C. no. [FN13] Here the call ceased.

Mr. MADISON made a motion requiring 2/3 at least of the Senate to be present at the choice of a President. Mr. PINKNEY 2ded. the motion

Mr. GORHAM thought it a wrong principle to require more than a majority in any case. In the present case [FN14] it might prevent for a long time any choice of a President.

On the question moved by Mr. M. & Mr. P., N. H. ay: Mas. abst. Ct. no. N. J. no. Pa. no. Del.no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN15]

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 Reps 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 Mr. Sherman N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN16]

Mr. Govr. 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.]

Mr. MADISON remarked that as a majority of members wd. make a quorum in the H. of Reps. 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, Virga. & Pena. which have 18 members, if these States alone should be present

On a motion that the eventual election of Presidt. in case of an equality [FN17] of the votes of the electors be referred to the House of Reps.

N. H. ay. Mas. ay. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN18]

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."

Col: MASON liked it as obviating the remark of Mr. Madison-The motion as far as "States" inclusive was agd. to. On the residue to wit, "and also of a majority of the whole number of the House of Reps. it passed in the Negative.

N. H. no. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. no. Geo. no. [FN19]

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 [ [FN20] 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 vicepresident: 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 U. States."

FN2 The word "fourth" is substituted in the transcript for "(5)," the latter being an error.

FN5 In the transcript the vote reads: "New Hamphsire, Virginia, North Carolina, aye-3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Delawar, Maryland, south Carolina, Georgia, no-8."

FN6 In the transcript the vote reads: "North Carolina, south Carolina, aye-2; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Georgia, no-9."

FN9 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsyivania, Delaware, Maryland, Virginia, Georgia, aye-9; North Carolina, South Carolina, no-2."

FN11 In the transcript the vote reads: "New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georiga, aye- 8; Massachusetts, New Jersey, Delaware, no-3."

FN12 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, South Carolina, Georgia, aye-8; Pennsylvania, Virginia, North Carolina, no-3."

FN13 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, aye-7; North Carolina, no."

FN15 In the transcript the vote reads: "New Hampshire, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye-6; Connecticut, New Jersey, Pennsylvania, Delaware, no-4; Massachusetts, absent."

FN16 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, virginia,North Carolina, South Carolina, Georgia, aye-10. Delaware, no-1."

FN18 In the transcript the vote reads: "New Hamphsire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, age-7; New Jersey, Delaware, Maryland, no-3."

FN19 In the transcript the vote reads: "Massachusetts, Connecticut, Pennsylvania, North Caro lina, aye-5; New Hampshire, New Jersey, Delaware, Maryland, South Carolina, Georgia, no-6."

FN20 NOTE. This clause was not inserted on this day, but on the 7th. [FN21] Sepr. See Friday the 7th. [FN22]

(This is a rapid fire day of motions regarding Presidential Elections. Just look at what emerged in the Constitution, Article II, Section 1. The final product is a world better than what the delegates kicked around today. Confusion arises from the differences between the two sources I used throughout this work, the online versions of Madison’s notes from The Avalon Project/Constitution Society and Max Farrand’s 1911 masterpiece, The Records of the Federal Convention.) On nearly all days this summer the two perfectly agreed; today was something of a contradictory mess, especially toward the end.)

Rufus King and Elbridge Gerry proposed an amendment to the 4th Clause from Mr. Brearly’s report from the Committee of Eleven from September 4th. It would prevent any Presidential elector from being a member of Congress or who held an office of “profit or trust” under the US. The motion passed without opposition.

Elbridge Gerry motioned, that if a sitting President was not reelected with an outright majority for a second term, the election outcome should be decided by the entire Congress. By this fashion, he would not be dependent upon the Senate for continuing terms.

Rufus King and Hugh Williamson supported the idea as amenable to particular delegates since it reduced the influence of the Senate over the President.

George Read opposed it precisely because it was designed to satisfy particular members.

Roger Sherman could accept minor amendments, but insisted that should the entire Congress decide, it should be by States, since the Large States had the advantage in nominating the candidates.

Governeur Morris supported Mr. Gerry’s motion. It would liberate the President from having to look over his shoulder at the Senate when deciding who to appoint to offices.

James Wilson probably summed up what many were thinking. The plan had tended way too far toward an aristocratic Senate. It had the de facto power to appoint the President, name his officers, appoint Judges, make treaties and try impeachments. This constituted something very close to entitling Legislative, Executive and Judicial Powers to a small group of men (the very definition of Tyranny). The power to make treaties involved “subsidies” and foreign intrigue.

(Hmm, by subsidy did he imply that Senators could be bribed to vote or not vote for imposts?)

The President would be nothing more than a “minion of the Senate,” rather than a man of the people.

(Recall that Mr. Wilson’s State of PA had the most radical democratic government of all. He supported popular election of the House, Senate and President. Most States had weak Executive branches where the Legislatures rolled over Governors.)

Mr. Wilson said the President could not hire a tide waiter without Senate approval. (New term to me, this tide waiter. It was a customs official who boarded incoming ships.) The Senate was too numerous to make appointments. It would be in constant session and would command high salaries. Combine these with dominance over the President, it was inevitable they would depress the House and increase their power by an equal amount. The Senate was certain to contrive to throw the Presidential election to their house. Given the big picture, the sum of powers, he could not agree to it.

Governeur Morris had more trust in the proposed system. He doubted the Senate would be called upon to elect the President, but if they did they were restricted to consider five men not of their choosing. This was hardly an increase in power. He mostly dismissed any problem with Senatorial appointment of judges nominated by the President. Make treaties? No problem. As for officers, the sense of the Convention was to deny the Executive sole appointment power.

Hugh Williamson said the aristocratic nature of the Senate arose from the President’s dependence on it.

George Clymer (PA) would not agree to the plan’s aristocratic bent of Senatorial appointments to offices.

(Alexander Hamilton was the remaining delegate from NY. His fellows Robert Yates and John Lansing departed July 10. With two of three absent, NY had no vote.)

Alexander Hamilton (NY) only grudgingly supported the new plan of government. It was better than nothing. Extending the Presidential term to seven years and be ineligible for another, would invite abuse. (Think what an unrestrained Obama will pull if he wins in 2012.) Mr. Hamilton agreed the Senate would connive to keep their President in office. His solution was to let the highest number of votes from the State Legislatures determine the President.

Richard Spaight, Hugh Williamson (Both from NC) moved to insert “seven” v. “four” for Presidential terms, which lost on an 8-3 vote.

They then motioned to insert “six” years, which failed 9-2.

The question to have State Legislatures appoint a slate of electors equal to the number of their Congressional delegations passed 9-2.

A motion to have the Presidential Electors meet at the seat of government failed 10-1.

Several motions then passed which dealt with the handling of Elector votes from the States.

Richard Spaight I believe asked for State Electors to meet at the seat of government, cast their votes, and the plurality winner would become President. After seconding by Mr. Williamson, his motion was defeated.

Words were added to ensure the election was held on the same day throughout the US by an 8-3 vote.

Two motions passed, the significance of which eludes me.

James Madison and Mr. Pinckney motioned for at least a 2/3 quorum of Senators. Nathaniel Gorham disagreed. The motion passed 6-4.

Hugh Williamson (here we go again) motioned to substitute the entire Congress and vote by State rather than per capita.

Roger Sherman motioned and George Mason heartily supported, to substitute the House of Reps instead, each State having one vote.

Mr. Sherman’s motion passed 10-1.

Governeur Morris made a novel suggestion that would remove a sitting President from Congressional reelection.

James Madison pointed out that with only a quorum necessary in the House, VA and PA could theoretically elect the President.

A motion to refer the election to the House of Reps in the event of a tie passed 6-3.

(See the Journal Notes for the final, amended section relating to the Election of the 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 U. States.”

Adjourned.

Constitutional Convention Ping!

James Madison wrote a letter today to Thomas Jefferson, then an envoy to France. Mr. Madison was not entirely pleased with the emerging Constitution.

Philada. Sepr. 6. 1787,

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 Governmt. 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, not prevent the local mischiefs which everywhere excite disgusts agst. the State Governments. The grounds of this opinion will be the subject of a future letter. . . .

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 wch. 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. . . .

Mr. Wythe has never returned to us. His lady whose illness carried him away, died some time after he got home.

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