Skip to comments.Journal of the Federal Convention August 24th 1787
Posted on 08/24/2011 2:24:31 AM PDT by Jacquerie
Article VII Sections 4-6. Slavery. Taxes. Navigation Acts. Article IX Sections 2-3. Judiciary. Article X. Congress Appoints the President. Public Good. Morris Speech. Popular Electors. Public Offices.
Governour LIVINGSTON, from the Committee of Eleven, to whom were referred the two remaining clauses of the 4th. Sect & the 5 & 6 Sect: of the 7th. art: [FN2] delivered in the following Report:
"Strike out so much of the 4th Sect: 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 5 Sect: to remain as in the Report"
"The 6 Sect to be stricken out"
Mr. BUTLER, according to notice, moved that clause 1st. sect. 1. of Art VII, as to the discharge of debts, be reconsidered tomorrow. He dwelt on the division of opinion concerning the domestic debts, and the different pretensions of the different classes of holders.
Genl. PINKNEY 2ded. 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
N. H. no. Mas: ay. Cont. ay N. J. ay. Pena. absent. Del. ay Md. no. Va. ay. N. C. absent, S. C. ay. Geo. ay. [FN3]-and tomorrow assigned for the reconsideration.
Sect: 2 & 3 of art: IX [FN4] being taken up,
Mr. RUTLIDGE 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.
Docr. JOHNSON 2ded. the Motion
Mr. SHERMAN concurred: so did Mr. DAYTON.
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. GHORUM 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 2d. & 3d. Section, it passed in the negative
N. H. ay. Masts. no. Cont. no N. J. no. Pena. abst. Del. no. Md. no. Va. no. N. C. ay. S. C. no. Geo. ay. [FN5]
Mr. WILSON urged the striking out, the Judiciary being a better provision.
On Question for striking out [FN6] 2 & 3 Sections [FN7] Art: IX N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. abst Del. ay. Md. ay. Va. ay. N. C. no. S. C. ay. Geo. no. [FN8]
Art. X. sect. 1. [FN9] "The executive power of the U. S. shall be vested in a single person. His stile shall be "The President of the U. S. 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 Stile and title.
Mr. RUTLIDGE 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. GHORUM 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 shd. 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 [FN10] 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 & necessity of the case would ensure a concurrence.
Mr. CARROL moved to strike out "by the Legislature" and insert "by the people."
Mr. WILSON 2ded. him & on the question
N. H. no. Massts. no. Cont. no. N. J. no. Pa. ay. Del. ay. Md. no. Va. no N. C. no. S. C. no. Geo. no. [FN11]
Mr. BREARLY was opposed to the motion for [FN12] 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 balot in this case to the other branch of the Legislature.
Mr. LANGDON. This general officer ought to be elected by the joint & general voice. In N. 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" tho' unfavorable to N. Hampshire as a small State.
Mr. WILSON remarked that as the President of the Senate was to be President of the U. S. 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 4 to 1 only, altho the population is as 10 to 1. This surely can not 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 U. S. and by his negative alone can make 3/4 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
N. H. ay. Masts. ay. Ct. no. N. J. no. Pa. ay. Del. ay. Md. no Va. ay. N. C. ay. S. C. ay. Geo. no. [FN13]
Mr. DAYTON then moved to insert, after the word "Legislatures" [FN14] the words "each State having one vote" Mr. BREARLEY 2ded. him, and on the question it passed in the negative
N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. ay. [FN15]
Mr. PINKNEY moved to insert after the word "Legislature" the words "to which election a majority of the votes of the members present shall be required" &
On this question, it passed in the affirmative
N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN16]
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. Govr. 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 depedent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. Cabal & corruption are attached to that mode of election: so also [FN17] is ineligibility a second time. Hence the Executive is interested in Courting popularity in the Legislature by sacrificing his Executive Rights; & 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 intrigueing 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. CARROL 2ded. him & on the question it passed in the negative.
N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [FN18]
Mr. DAYTON moved to postpone the consideration of the two last clauses of Sect. 1. art. X. which was disagreed to without a count of the States.
Mr. BROOME moved to refer the two clauses to a Committee of a member from each State, & on the question, it failed the States being equally divided
N. H. no. Mas. no. Ct. divd. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [FN19]
On the question taken on the first part of Mr. Govr. Morris's Motion towit "shall be chosen by electors" as an abstract question, it failed the States being equally divided.
N. H. no. Mas. abst. Ct. divd. N. Jersey ay. Pa. ay. Del. ay. Md. divd. Va. ay. N. C. no. S. C. no. Geo. no. [FN20]
The consideration of the remaining clauses of Sect 1. art X. was then postponed till tomorrow at the instance of the Deputies of New Jersey.
Sect. 2. Art: X [FN21] being taken up, the word information was transposed & inserted after "Legislature"
On motion of Mr. Govr. MORRIS, "he may" was struck out, & "and" inserted before "recommend" in clause 2d. sect 2d. art: X. in order to make it the duty of the President to recommend, & 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 by [FN22] 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 G. 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 2d. 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
N. H. no. Mas. no. Ct. ay. N. J. no. Pena. no. Del. no. Md. no. Va. no. N. C. absent. S. C. no. Geo. no. [FN23]
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 & Legislative hands-and suggested whether the Legislature should not be left at liberty to refer appointments in some cases, to some State authority.
Mr. DICKENSON'S motion, it [FN24] passed in the affirmative N. H. no. Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C. no. Geo. ay. [FN25]
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. RANDOLPH 2ded. the motion
Mr. WILSON- If this be agreed to it will soon be a standing instruction from the State Legislatures to pass no law creating offices, unless the appts. be referred to them. Mr. SHERMAN objected to "Legislatures" in the motion, which was struck out by consent of the movers.
Mr. Govr. 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 4 OClock be repealed, & that in future the House assemble at 10 OC. & adjourn at 3 OC. [FN26]
FN1 The year "1737" is omitted in the transcript.
FN2 See ante.
FN3 In the transcript the vote reads: "Massachusetts, Connecticut, New Jersey, Delaware, Virginia, Southe Carolina, Geogia, aye-7; New Hampshire, Maryland, no-2; Pennsylvania, North Carolina, absent."
FN4 See ante.
FN5 In the transcript the vote reads: "New Hampshire, North Carolina, Georgia, aye-3; Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, South Carolina, no-7; Pennsylvania, absennt."
FN6 The word "the " is here inserted in the transcript.
FN7 The word "of" is here inserted in the transcript.
FN8 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, Southe Carolina, aye-8; North Carolina, Georgia, no-2; Pennsylvania, absent."
FN9 See ante.
FN10 The transcript does not italicize the word "joint."
FN11 In the transcript the vote reads: "Pennsylvania, Delaware, aye-2; 1New Hampshire, Massachusetts, Connecticut, New Jersey, Maryland, Virginia, North Carolina, South Carolina, Georgia, no-9."
FN12 The words "the motion for" are omitted in the transcript.
FN13 In the transcript the vote reads: "New Hampshire, Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, aye-7; Connecticut, New Jersey, Maryland, Georgia, no-4."
FN14 In the transcript the word "Legislatures" is in the singular.
FN15 In the transcript the vote reads: "Connecticut, New Jersey, Delaware, Maryland, Georgia, aye-5; New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, no-6."
FN16 In the transcript the vote reads: "New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, georgia, aye-10; New Jersey, no-1."
FN17 The word "also" is omitted in the transcript.
FN18 In the transcript the vote reads: "Connecticut, New Jersey, Pennsylvania, Delaware, Virginia, aye-5; New Hmapshire, Massachusetts, MAryland, North Carolina, South Carolina, Geogia, no-6."
FN19 In the transcrit the vote reads:"New Jersey, Pennsylvania, Delaware, Maryland, Virginia, aye-5; New Hmapshire, Massachusetts, North Carolina, South Carolina, Georgia, no-5; Connecticut, devided."
FN20 In the transcript the vote reads: "New Jersey, Pennsylvania, Delaware, Virginia, aye-4; New Hampshire, North Carolina, South Carolina, georgia, no- 4; Connecticut, Maryland, divided; Massachusetts, absent."
FN21 See ante.
FN22 The word "in" is substituted in the transcript for "by."
FN23 In the transcript the vote reads: "Connecticut, aye-1; New Hampshire, Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, South Carolina, Georgia, no-9; North Carolina, absent."
FN24 The word "it" is omitted in the transcript.
FN25 In the transcript the vote reads: "Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, Georgia, aye-6; New Hampshire, Massachusetts, Delaware, South Carolina, no-4; North Carolina, absent."
FN26 The letteres "OC" are ommitted in the transcript.
The first clause of Article VII Section 4 was approved 21 Aug, No tax or duty shall be laid by the Legislature on articles exported from any State;
Gov Livingstons committee examined the next clauses of Section 4, nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.
The committee wished to replace the clauses with, -"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." It was recommended to leave Article VII Sect. 5 as it was; No capitation tax shall be laid, unless in proportion to the Census hereinbefore directed to be taken.
Lastly, Article VII Sect 6 was to be struck entirely; No navigation act shall be passed without the assent of two thirds of the members present in the each House.
Pierce Butler (SC) notified the Convention he would revisit (Article VII Section 1 Clause 1) tomorrow, the role of speculators of National Debt.
Charles Pinckney (SC) seconded and Governor Edmund Randolph also wished to reconsider.
The convention voted to reconsider on the next day, 7-2.
(Okay, the Committee Report was submitted, but not taken up for debate.)
Article IX Sections 2-3 were next. (I do not print them here for they are very long and nearly identical to Article IX of the Articles of Confederation. As an example of how unworkable the Confederation was, this Article was among the worst.)
John Rutlidge (SC) moved and Dr. William Samuel Johnson (CN) seconded to strike the Sections because of a National Judiciary in the new plan.
Roger Sherman (CN) and Jonathan Dayton (NJ) concurred.
Hugh Williamson (NC) and Nathaniel Gorham (MA) motioned to postpone instead of striking out.
On the question to postpone, it failed 7-3.
James Wilson (PA) moved to strike out Article IX Sections 2-3. It was approved 8-2.
Article X Section 1, The Executive Power of the United States shall be vested in a single person. His stile 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, was next.
The first and second clauses passed without opposition, a single Executive and his style and title.
John Rutlidge (SC) moved to add, joint before ballot, as the most convenient method.
Roger Sherman (CN) assumed each house had a negative on the other, including selection of the Executive. The voice of the States should not be silenced. He therefore opposed the motion of Mr. Rutlidge.
Nathaniel Gorham (MA) (appealed to National rather than local interests) Keep the public good in mind. Contentious back and forth between the two houses would result in unnecessary turmoil.
Jonathan Dayton (NJ) pointed out what all knew; a joint session would give the House of Representatives, meaning the large states, effective dominance over the elections of Presidents. He could never agree to it. He did not foresee problems with two houses agreeing separately on a common candidate.
Daniel Carroll (MD) moved, and James Wilson (PA) seconded to replace by the Legislature, with, by the people.
(Popular election of the President was considered and quickly rejected.)
Mr. Carrolls motion failed 9-2.
David Brearly (NJ) opposed adding joint. The Small States would not rip off the Large States, in this case that is.
James Wilson (PA) explained why the Larger States should have a greater voice and the danger of separate house votes. The Senate would play a big balancing role to the overall vote advantage of Large States.
John Langdon (NH) (put the narrow interests of his State aside.) thought the President should be elected by the single voice of Congress. Discrete votes by each house in NH brought troubles; a no in one house would hurt the feelings (make an enemy?) of the defeated. He supported a joint session despite the size of his State.
James Wilson (PA) pointed out that since the President of the Senate (at this moment, the President of the Senate was to be chosen by Senators, just as the Speaker of the House was elected by fellow Congressmen) would become President of the United States in the event of vacancy, there was potential for purposeful delay if the Senate sat as a separate electing body. (Our Framers didnt miss much.)
James Madison (VA) (did some math) compared votes between the largest and smallest States. The largest would have four times the votes of the smallest while it had ten times the population. This could not be unreasonable as the President was to represent all of the people.
By a 7-4 vote, Congress would sit in joint session to elect the President.
Jonathan Dayton (NJ) motioned and David Brearly (NJ) seconded to limit each State to one vote. The motion failed in a squeaker, 6-5.
Charles Pinckney (SC) (sought to head off State boycotts as was done in the Confederation) motioned to require only a majority of votes of members present (rather than a majority of all Representatives and Senators).
Mr. Pinckneys motion carried 10-1.
Judge George Read (DE) moved to give the President of the Senate an additional vote in the event of a tie. This was disagreed to without a formal vote.
Governeur Morris (PA) (For some reason, Mr. Morris is not acknowledged as a major influence, a big player and large brain at the Convention.) motioned to replace Congressional appointment (with a method very close to what we have today) with electors chosen by the people. As it was, there would be incredible corruption in Congressional appointment, the President would be a weak tool of the people he owed his office to, and would seek to feather his nest after his term. He would sacrifice executive powers, the rights of the people, to satisfy his overlords. Worse, there would be continual intrigue to oust him.
Daniel Carroll (MD) seconded and the motion narrowly failed 6-5.
Jonathan Dayton (NJ) motioned to postpone consideration of the last two clauses of Article X Section 1. It failed without a formal vote.
(The last two clauses:) He shall hold his office during the term of seven years; but shall not be elected a second time.
Jacob Broome (DE) motioned to commit the two clauses; it failed on an equal vote.
A portion of Mr. Morris motion, taken in the abstract, to elect the President via electors, failed on an equal vote.
(In a interesting twist) NJ delegates insisted the remaining clauses of Article X Section 1 be postponed to tomorrow.
Article X Section 2 was next. He shall, from time to time, give information to the Legislature, of the state of the Union: he may recommend to their consideration such measures as he shall judge necessary, and expedient: he may convene them on extraordinary occasions. In case of disagreement between the two Houses, with regard to the time of adjournment, he may adjourn them to such time as he thinks proper: he shall take care that the laws of the United States be duly and faithfully executed: he shall commission all the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution. He shall receive Ambassadors, and may correspond with the supreme Executives of the several States. He shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment. He shall be commander in chief of the Army and Navy of the United States, and of the Militia of the several States. He shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during his continuance in office. Before he shall enter on the duties of his department, he shall take the following oath or affirmation, "I - solemnly swear, (or affirm) that that I will faithfully execute the office of President of the United States of America." He shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corruption. In case of his removal as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed.
Information was removed and inserted after Legislature.
Roger Sherman (CN) objected to shall appoint officers in all cases not otherwise provided for by this Constitution. It was too broad. What of military officers? He feared what happened under the reign of James II of Great Britain. He moved to insert or by law after Constitution.
(He was on to something here, which in the final Constitution would end up in Article II Section 2. The damnable czars of recent years are clearly extra, if not unConstitutional.)
James Madison (VA) motioned to strike officers and replace with to offices. This would preclude appointment to offices not created by law. (Really? That is not how I read the amended wording.) His motion passed.
On Mr. Shermans or by law amendment, it failed 9-1.
(The Convention is groping for the words to allow the President to nominate to offices as set up by law and thereafter approved by the Senate. As with some other clauses, the words did not come easy, but only after some fine brains set to it.)
John Dickinson (DE) 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."
Governor Edmund Randolph mused on the power to appoint.
Mr. Dickinsons motion carried, 6-4.
John Dickinson (DE) moved and Governor Edmund Randolph seconded, to add, "except where by law the appointment shall be vested in the Legislatures or Executives of the several States."
James Wilson (PA) thought this clause would be immediately abused by the States.
Roger Sherman (CN) and Governeur Morris (PA) continued down this dead end alley.
Mr. Dickinsons motion failed to pass.
By unanimous vote, the Convention would meet at 10 am and adjourn at 3 pm.
With almost three months down and less than one to go in the Convention, the Senate still had power to appoint the President, federal judges and make treaties. Upon vacancy or death, the President of the Senate, who was elected among the Senators would assume the Presidency.
Despite previously stated fears of an Aristocratic Senate, the Framers were remarkably close to creating one.
If the written Constitution is the Supreme Law of the land —as it declares. And IF all public officers are administered a solemn Oath or affirmation to defend the Constitution of the United States of America. Then it makes sense to me when Congress—or the Executive— or even the vaunted Courts stray from their sworn duty 9the example noted here was the so called Czars seen of late) Then that body acting contrary to the clear terms used in the written Constitution rends itself irrelevant—and untrustworthy.No wonder used car salesmen and even certain television Preachers have more credibility than our elected and selected leaders?
Well, when a rat swears to support and defend the Constitution, he lies. These people think they are supposed to rule, rather than govern. I think the homoerotic rat party, in 2012 will look back at 2010 as a good election year.