Col. 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, ay, 5; New Hampshire, New Jersey, Delaware, Maryland, South Carolina, Georgia, no, 6.254

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, [* 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."

Adjourned.

FRIDAY, September 7.

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 VicePresident; 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,

*This clause was not inserted on this day, but on the 7th of September. See page 521.

and moved to substitute, "until such disability be removed, or a President shall be elected."*

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, ay, 6; Massachusetts, Connecticut, Delaware, North Carolina, no, 4; New Hampshire, divided.

Mr. GERRY moved,

"that, in the eleetion 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 numbers 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 "6 a member or members from two thirds of the states," it was agreed to, nem. con.255

The second section, (see the 4th of September, page 507,) 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.

* In the printed Journal, this amendment is put into the original motion.
VOL. V.

66

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 tempo rary 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.

Col. 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, ay, 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, ay, 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 Col. 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 Col. 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, ay, 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,"

"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 concur rence 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