Wednesday Sepr 5. 1787. In Convention.

[51] This motion not contained in the printed Journal–Madison's Note.

M^r Randolph & M^r Madison expressed doubts as to the propriety of giving such a power, & wished for a postponement.

M^r Gov^r Morris thought it so plain a case that no postponement could be necessary.

M^r Wilson thought the power involved, and the express insertion of it needless. It might beget doubts as to the power of other public bodies, as Courts &c. Every Court is the judge of its own privileges.

M^r Madison distinguished between the power of Judging of privileges previously & duly established, and the effect of the motion which would give a discretion to each House as to the extent of its own privileges. He suggested that it would be better to make provision for ascertaining by law, the privileges of each House, than to allow each House to decide for itself. He suggested also the necessity of considering what privileges ought to be allowed to the Executive.

Wednesday Sep^r 5. 1787. In Convention.

To the (2) clause M^r Gerry objected that it admitted of appropriations to an army, for two years instead of one, for which he could not conceive a reason, that it implied that there was to be a standing army which he inveighed against as dangerous to liberty, as unnecessary even for so great an extent of Country as this, and if necessary, some restriction on the number & duration ought to be provided: Nor was this a proper time for such an innovation. The people would not bear it.

M^r Sherman remarked that the appropriations were permitted only, not required to be for two years. As the Legislature is to be biennially elected, it would be inconvenient to require appropriations to be for one year, as there might be no Session within the time necessary to renew them. He should himself he said like a reasonable restriction on the number and continuance of an army in time of peace.

The (3) clause, M^r Gov^r Morris moved to postpone. It had been agreed to in the Committee on the ground of compromise, and he should feel himself at liberty to dissent to it, if on the whole he should not be satisfied with certain other parts to be settled.— M^r Pinkney 2^ded the motion.

M^r Sherman was for giving immediate ease to those who looked on this clause as of great moment, and for trusting to their concurrence in other proper measures.

So much of the (4) clause as related to the seat of Government was agreed to nem: con:

On the residue to wit, "to exercise like authority over all places purchased for forts" &c.

M^r Gerry contended that this power might be made use of to enslave any particular State by buying up its territory, and that the strongholds proposed would be a means of awing the State into an undue obedience to the Gen^l Government.

M^r King thought himself the provision unnecessary, the power being already involved: but would move to insert after the word "purchased" the words "by the consent of the Legislature of the State." This would certainly make the power safe.

M^r Gov^r Morris 2^ded the motion, which was agreed to nem: con: as was then the residue of the clause as amended.

The following Resolution & order being reported from the Committee of eleven, to wit,

M^r Gerry gave notice that he should move to reconsider articles XIX. XX. XXI. XXII.

M^r Williamson gave like notice as to the article fixing the number of Representatives, which he thought too small. He wished also to allow Rho: Island more than one, as due to her probable number of people, and as proper to stifle any pretext arising from her absence on the occasion.

The Report made yesterday as to the appointment of the Executive being then taken up. M^r Pinkney renewed his opposition to the mode, arguing 1. that the electors will not have sufficient knowledge of the fittest men, & will be swayed by an attachment to the eminent men of their respective States. Hence 2^dly the dispersion of the votes would leave the appointment with the Senate, and as the President's reappointment will thus depend on the Senate he will be the mere creature of that body. 3. He will combine with the Senate ag^st the House of Representatives. 4. This change in the mode of election was meant to get rid of the ineligibility of the President a second time, whereby he will become fixed for life under the auspices of the Senate.

M^r Gerry did not object to this plan of constituting the Executive in itself, but should be governed in his final vote by the powers that may be given to the President.

M^r Rutlidge was much opposed to the plan reported by the Committee. It would throw the whole power into the Senate. He was also against a re-eligibility. He moved to postpone the Report under consideration & take up the original plan of appointment by the Legislature, to wit. "He shall be elected by joint ballot by the Legislature to which election a majority of the votes of the members present shall be required: He shall hold his office during the term of seven years; but shall not be elected a second time."

Col. Mason admitted that there were objections to an appointment by the Legislature as originally planned. He had not yet made up his mind, but would state his objections to the mode proposed by the Committee. 1. It puts the appointment in fact into the hands of the Senate; as it will rarely happen that a majority of the whole votes will fall on any one candidate: and as the existing President will always be one of the 5 highest, his reappointment will of course depend on the Senate. 2. Considering the powers of the President & those of the Senate, if a coalition should be established between these two branches, they will be able to subvert the Constitution–The great objection with him would be removed by depriving the Senate of the eventual election. He accordingly moved to strike out the words "if such number be a majority of that of the electors."

M^r Williamson 2^ded the motion. He could not agree to the clause without some such modification. He preferred making the highest tho' not having a majority of the votes, President, to a reference of the matter to the Senate. Referring the appointment to the Senate lays a certain foundation for corruption & aristocracy.

M^r Gov^r Morris thought the point of less consequence than it was supposed on both sides. It is probable that a majority of the votes will fall on the same man. As each Elector is to give two votes, more than 1/4 will give a majority. Besides as one vote is to be given to a man out of the State, and as this vote will not be thrown away, 1/2 the votes will fall on characters eminent & generally known. Again if the President shall have given satisfaction, the votes will turn on him of course, and a majority of them will reappoint him, without resort to the Senate: If he should be disliked, all disliking him, would take care to unite their votes so as to ensure his being supplanted.

Col. Mason those who think there is no danger of there not being a majority for the same person in the first instance, ought to give up the point to those who think otherwise.

M^r Sherman reminded the opponents of the new mode proposed that if the small States had the advantage in the Senate's deciding among the five highest candidates the large States would have in fact the nomination of these candidates.

[52] In printed Journal Maryland–no–Madison's Note.

M^r Madison considered it as a primary object to render an eventual resort to any part of the Legislature improbable. He was apprehensive that the proposed alteration would turn the attention of the large States too much to the appointment of candidates, instead of aiming at an effectual appointment of the officer, as the large States would predominate in the Legislature which would have the final choice out of the candidates. Whereas if the Senate in which the small States predominate should have the final choice, the concerted effort of the large States would be to make the appointment in the first instance conclusive.

M^r Randolph. We have in some revolutions of this plan made a bold stroke for Monarchy. We are now doing the same for an aristocracy. He dwelt on the tendency of such an influence in the Senate over the election of the President in addition to its other powers, to convert that body into a real & dangerous Aristocracy.

M^r Dickinson was in favor of giving the eventual election to the Legislature, instead of the Senate. It was too much influence to be superadded to that body.

M^r Madison & M^r Williamson moved to strike out the word "majority" and insert "one-third" so that the eventual power might not be exercised if less than a majority, but not less than 1/3 of the Electors should vote for the same person.

M^r Gerry objected that this would put it in the power of three or four States to put in whom they pleased.

M^r Williamson. There are seven States which do not contain one third of the people. If the Senate are to appoint, less than one sixth of the people will have the power.

M^r Gerry suggested that the eventual election should be made by six Senators and seven Representatives chosen by joint ballot of both Houses.

M^r King observed that the influence of the Small States in the Senate was somewhat balanced by the influence of the large States in bringing forward the candidates, [53] and also by the Concurrence of the small States in the Committee in the clause vesting the exclusive origination of Money bills in the House of Representatives.

[53] This explains the compromise mentioned above by M^r Gov^r Morris. Col. Mason, M^r Gerry & other members from large States set great value on this privilege of originating money bills. Of this the members from the small States, with some from the large States who wished a high mounted Gov^t endeavored to avail themselves, by making that privilege, the price of arrangements in the constitution favorable to the small States, and to the elevation of the Government.–Madison's Note.

Col: Mason moved to strike out the word "five" and insert the word "three" as the highest candidates for the Senate to choose out of.

M^r Spaight and M^r Rutlidge moved to strike out "five" and insert "thirteen"–to which all the States disagreed–except N. C. & S. C.

M^r Madison & M^r Williamson moved to insert after "Electors" the words "who shall have balloted" so that the non voting electors not being counted might not increase the number necessary as a majority of the whole to decide the choice without the agency of the Senate.

M^r Dickinson moved, in order to remove ambiguity from the intention of the clause as explained by the vote, to add, after the words "if such number be a majority of the whole number of the Electors" the word "appointed."

Col: Mason. As the mode of appointment is now regulated, he could not forbear expressing his opinion that it is utterly inadmissible. He would prefer the Government of Prussia to one which will put all power into the hands of seven or eight men, and fix an Aristocracy worse than absolute monarchy.

The words "and of their giving their votes" being inserted on motion for that purpose, after the words "The Legislature may determine the time of chusing and assembling the Electors."

Thursday Sep^r 6. 1787. In Convention

M^r King and M^r Gerry moved to insert in the (5) [54] clause of the Report (see Sep^r 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 U. S. or who holds any office of profit or trust under the U. S." which passed nem: con:

[54] This is a mistake and should be fourth clause. See p. 298.

M^r 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.

M^r King liked the idea, as calculated to satisfy particular members and promote unanimity & as likely to operate but seldom.

M^r Read opposed it, remarking that if individual members were to be indulged, alterations would be necessary to satisfy most of them.

M^r Williamson espoused it as a reasonable precaution against the undue influence of the Senate.

M^r 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.

M^r Gov^r Morris thought favorably of M^r 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.

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.

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

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

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"

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

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

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.

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,

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

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

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.

The Report relating to the appointment of the Executive stands as amended, as follows.

[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 Benjⁿ 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.

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

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.