Madison’s Notes: Federal Convention of 1787: Sept. 06

Liberty Letters, 6 September 1787, James Madison

Editor’s Overview: Article ten, relative to the President, resumed. Mr. Gerry motions to exclude members of the Legislature, and public officers from being Electors. Passed. Mr. Spaight and Mr. Williamson enter motion to extend the Executive term from four to seven years. Rejected. And again from four to six years. Rejected. On the question to elect the President by Electors. Passed. A motion that the electors meet at the seat of the General Government to cast their votes. Rejected. Spaight and Williams tried the motion again. Rejected. A motion was then given that Congress would have power to appoint the day of election for the President and that it would be held on the same day throughout the Union. Passed.

The biggest debate of the day was in regards to what if there was a tie in the election of the President, or a failure to win a majority, should the vote be held in the Senate or the House. The current writing thus far was for the Senate, but many were protesting this was an aristocratic feature that gave the Senate too much power (combined with the other powers it already possessed). It was eventually settled to give the House this power. Each state would be given one vote in the House in such a circumstance, and two thirds of the House would constitute a quorum sufficient to cast the vote. Whoever received a majority of the votes cast in the House would be President, and the next most votes Vice President. If there was a tie for second place the Senate would elect the Vice President.

Steve Farrell


Mr. KING and Mr. GERRY moved to insert in the 4th clause of the Report (see September 4 ) 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 United States or who holds any office of profit or trust under the United States” 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 and promote unanimity, and 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, and thereby virtually give the appointments to office, to the Senate.

Mr. WILSON said that he had weighed carefully the report of the Committee for remodeling 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 and Judiciary appointments, to be the Court of impeachments, and to make Treaties which are to be laws of the land, the Legislative, Executive and 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. Wilson’s 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 United States: 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 Government 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, and 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, and the different districts Northern Middle and 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 and influence, that will perpetuate the President, and aggrandize both him and 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 and Mr. WILLIAMSON moved to insert “seven” instead of “four” years for the term of the President —

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.

Mr. SPAIGHT and Mr. WILLIAMSON, then moved to insert “six” instead of “four.”

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

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. Cont. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. ay. 9

It was moved that the Electors meet at the seat of the General Government 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 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 seconded the motion, on which all the States were in the negative except North Carolina.

On motion the words “But the election shall be on the same day throughout the United States” 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.

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. 12

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. 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 seconded the motion

Mr. 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 Mr. M. and Mr. P.

N. H. ay: Mas. abst. Ct. no. N. J. no. Pa. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. 15

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 Representatives 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.

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 would make a quorum in the House of Representatives 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, Virginia and Pennsylvania which have 18 members, if these States alone should be present

On a motion that the eventual election of President, in case of an equality of the votes of the electors be referred to the House of Representatives.

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

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 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.

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. 19

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.”



This version of Madison’s Notes on the Federal Convention of 1787, with Editor’s overview, modernized spelling, and much of the shorthand removed: Copyright © 2011 Steve Farrell and The Moral Liberal.