The Journal of the

Debates in the Convention

Which Framed

The Constitution of the

United States

May-September, 1787

As Recorded by

James Madison

Edited by

Gaillard Hunt

In Two Volumes

Volume II.

G. P. Putnam's Sons

New York and London

The Knickerbocker Press

1908

The Knickerbocker Press, New York

CONTENTS OF VOLUME II.

PAGE

Chronology [vii]

Journal of the Constitutional Convention [1]

Index [417]

FAC-SIMILE.

FACING
PAGE

First Page of the Constitution, reduced [a]414]

CHRONOLOGY OF JAMES MADISON.

1787.

1787

July 19. Advocates election of the Executive by the people.

July 20. Speaks in favor of making the Executive impeachable.

July 21. Seconds proposition to include the Judiciary with the Executive in power to revise laws.
Moves that judges be appointed by the Executive with concurrence of two-thirds of Senate.

July 25. Shows the difficulty of devising satisfactory mode of selecting Executive.

August 7. Advocates liberal suffrage.

August 8. Moves that basis of representation in House of Representatives be one to not more than 40,000 inhabitants.
Opposes proposition that money bills originate only in House of Representatives.

August 9. Opposes incorporation in constitution of provision against persons of foreign birth holding office.

August 10. Moves that legislature have power to compel attendance of members.

August 11. Moves that Congress publish its journals, except such parts of Senate proceedings as may be ordered kept secret.
Advocates a centrally located capital.

August 13. Seconds motion in favor of liberal treatment of foreigners.
Speaks in favor of participation of Senate in making appropriations.

August 15. Moves that all bills be passed upon by the Executive and Judiciary before becoming laws.

August 16. Advocates national power to tax exports.

August 17. Moves that legislature have power to declare war.

August 18. Submits propositions for national power over public lands, to form governments for new States, over Indian affairs, over seat of government, to grant charters of incorporation, copyrights, to establish a university, grant patents, acquire forts, magazines, etc.
Speaks in favor of national control of militia.

August 22. Appointed on committee to consider navigation acts.
Moves that States have power to appoint militia officers under rank of general officers.
Moves to commit question of negative of State laws.
Moves to include the Executive in treaty-making power.

August 25. Declares it is wrong to admit the idea of property in men in constitution.

August 27. Suggests that in case of death of President his council may act.
Moves form of oath for President.
Moves that judges' salaries be fixed.
Expresses doubt whether Judiciary should have power over cases arising under constitution.

August 28. Moves that States be forbidden to lay embargoes, export and import duties.

August 29. Speaks in favor of navigation acts.

August 31. Moves that ratification of constitution be by a majority of States and people.
Advocates ratification by State conventions.
Appointed on committee to consider parts of constitution and propositions not yet acted upon.

Sept 3. Thinks eventual election of President by legislature should be made difficult.

Sept 7. Moves that Senate have power to make treaties of peace without President.

Sept 8. Moves that quorum of Senate be two-thirds of all the members.
Seconds motion to increase representation.

Sept 14. Suggests that legislature should have power to grant charters of incorporation.

Sept 17. Signs constitution.

JOURNAL OF THE CONSTITUTIONAL
CONVENTION OF 1787.

Thursday July 19. in Convention.

On reconsideration of the vote rendering the Executive re-eligible a 2^d time, M^r Martin moved to re-instate the words, "to be ineligible a 2^d time."

M^r Governeur Morris. It is necessary to take into one view all that relates to the establishment of the Executive; on the due formation of which must depend the efficacy & utility of the Union among the present and future States. It has been a maxim in Political Science that Republican Government is not adapted to a large extent of Country, because the energy of the Executive Magistracy can not reach the extreme parts of it. Our Country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it. This subject was of so much importance that he hoped to be indulged in an extensive view of it. One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, ag^st Legislative tyranny, against the Great & the wealthy who in the course of things will necessarily compose the Legislative body. Wealth tends to corrupt the mind to nourish its love of power, and to stimulate it to oppression. History proves this to be the spirit of the opulent. The check provided in the 2^d branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1^st branch to legislate too much to run into projects of paper money & similar expedients. It is no check on Legislative tyranny. On the contrary it may favor it, and if the 1^st branch can be seduced may find the means of success. The Executive therefore ought to be so constituted as to be the great protector of the Mass of the people.–It is the duty of the Executive to appoint the officers & to command the forces of the Republic: to appoint 1. ministerial officers for the administration of public affairs. 2. officers for the dispensation of Justice. Who will be the best Judges whether these appointments be well made? The people at large, who will know, will see, will feel the effects of them. Again who can judge so well of the discharge of military duties for the protection & security of the people, as the people themselves who are to be protected & secured? He finds too that the Executive is not to be re-eligible. What effect will this have? 1. it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. It may give a dangerous turn to one of the strongest passions in the human breast. The love of fame is the great spring to noble & illustrious actions. Shut the Civil road to Glory & he may be compelled to seek it by the sword. 2. It will tempt him to make the most of the short space of time allotted him, to accumulate wealth and provide for his friends. 3. It will produce violations of the very constitution it is meant to secure. In moments of pressing danger the tried abilities and established character of a favorite magistrate will prevail over respect for the forms of the Constitution. The Executive is also to be impeachable. This is a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature. These then are the faults of the Executive establishment as now proposed. Can no better establish^t be devised? If he is to be the Guardian of the people let him be appointed by the people? If he is to be a check on the Legislature let him not be impeachable. Let him be of short duration, that he may with propriety be re-eligible. It has been said that the candidates for this office will not be known to the people. If they be known to the Legislature, they must have such a notoriety and eminence of Character, that they cannot possibly be unknown to the people at large. It cannot be possible that a man shall have sufficiently distinguished himself to merit this high trust without having his character proclaimed by fame throughout the Empire. As to the danger from an Unimpeachable magistrate he could not regard it as formidable. There must be certain great Officers of State; a minister of finance, of war, of foreign affairs &c. These he presumes will exercise their functions in subordination to the Executive, and will be amenable by impeachment to the Public Justice. Without these ministers the Executive can do nothing of consequence. He suggested a biennial election of the Executive at the time of electing the 1^st branch, and the Executive to hold over, so as to prevent any interregnum in the administration. An election by the people at large throughout so great an extent of country could not be influenced by those little combinations and those momentary lies, which often decide popular elections within a narrow sphere. It will probably, be objected that the election will be influenced by the members of the Legislature; particularly of the 1^st branch, and that it will be nearly the same thing with an election by the Legislature itself. It could not be denied that such an influence would exist. But it might be answered that as the Legislature or the candidates for it would be divided, the enmity of one part would counteract the friendship of another; that if the administration of the Executive were good, it would be unpopular to oppose his re-election, if bad it ought to be opposed & a reappointm^t prevented; and lastly that in every view this indirect dependence on the favor of the Legislature could not be so mischievous as a direct dependence for his appointment. He saw no alternative for making the Executive independent of the Legislature but either to give him his office for life, or make him eligible by the people. Again, it might be objected that two years would be too short a duration. But he believes that as long as he should behave himself well, he would be continued in his place. The extent of the Country would secure his re-election ag^st the factions & discontents of particular States. It deserved consideration also that such an ingredient in the plan would render it extremely palatable to the people. These were the general ideas which occurred to him on the subject, and which led him to wish & move that the whole constitution of the Executive might undergo reconsideration.

M^r Randolph urged the motion of M^r L. Martin for restoring the words making the Executive ineligible a 2^d time. If he ought to be independent, he should not be left under a temptation to court a re-appointment. If he should be re-appointable by the Legislature, he will be no check on it. His revisionary power will be of no avail. He had always thought & contended as he still did that the danger apprehended by the little States was chimerical; but those who thought otherwise ought to be peculiarly anxious for the motion. If the Executive be appointed, as has been determined, by the Legislature, he will probably be appointed either by joint ballot of both houses, or be nominated by the 1^st and appointed by the 2^d branch. In either case the large States will preponderate. If he is to court the same influence for his re-appointment, will he not make his revisionary power, and all the other functions of his administration subservient to the views of the large States. Besides, is there not great reason to apprehend that in case he should be re-eligible, a false complaisance in the Legislature might lead them to continue an unfit man in office in preference to a fit one. It has been said that a constitutional bar to re-appointment will inspire unconstitutional endeavours to perpetuate himself. It may be answered that his endeavours can have no effect unless the people be corrupt to such a degree as to render all precautions hopeless; to which may be added that this argument supposes him to be more powerful & dangerous, than other arguments which have been used, admit, and consequently calls for stronger fetters on his authority. He thought an election by the Legislature with an incapacity to be elected a second time would be more acceptable to the people than the plan suggested by M^r Gov^r Morris.

M^r King did not like the ineligibility. He thought there was great force in the remark of M^r Sherman, that he who has proved himself most fit for an Office, ought not to be excluded by the constitution from holding it. He would therefore prefer any other reasonable plan that could be substituted. He was much disposed to think that in such cases the people at large would chuse wisely. There was indeed some difficulty arising from the improbability of a general concurrence of the people in favor of any one man. On the whole he was of opinion that an appointment by electors chosen by the people for the purpose, would be liable to fewest objections.

M^r Patterson's ideas nearly coincided he said with those of M^r King. He proposed that the Executive should be appointed by Electors to be chosen by the States in a ratio that would allow one elector to the smallest and three to the largest States.

M^r Wilson. It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered in-eligible a 2^d time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people.

M^r Madison. If it be a fundamental principle of free Gov^t that the Legislative, Executive & Judiciary powers should be separately exercised, it is equally so that they be independently exercised. There is the same & perhaps greater reason why the Executive sh^d be independent of the Legislature, than why the Judiciary should. A coalition of the two former powers would be more immediately & certainly dangerous to public liberty. It is essential then that the appointment of the Executive should either be drawn from some source, or held by some tenure that will give him a free agency with regard to the Legislature. This could not be if he was to be appointable from time to time by the Legislature. It was not clear that an appointment in the 1^st instance even with an ineligibility afterwards would not establish an improper connection between the two departments. Certain it was that the appointment would be attended with intrigues and contentions that ought not to be unnecessarily admitted. He was disposed for these reasons to refer the appointment to some other source. The people at large was in his opinion the fittest in itself. It would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem. There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.

M^r Gerry. If the Executive is to be elected by the Legislature he certainly ought not to be re-eligible. This would make him absolutely dependent. He was ag^st a popular election. The people are uninformed, and would be misled by a few designing men. He urged the expediency of an appointment of the Executive by Electors to be chosen by the State Executives. The people of the States will then choose the 1^st branch; the legislatures of the States the 2^d branch of the National Legislature, and the Executives of the States, the National Executive. This he thought would form a strong attachm^t in the States to the National System. The popular mode of electing the chief Magistrate would certainly be the worst of all. If he should be so elected & should do his duty, he will be turned out for it like Gov^r Bowdoin in Mass^ts & President Sullivan in N. Hampshire.

On the question on M^r Gov^r Morris motion to reconsider generally the Constitution of the Executive

Mas. ay. C^t ay. N. J. ay. & all the others ay.

M^r Elseworth moved to strike out the appointm^t by the Nat^l Legislature, and to insert, to be chosen by electors appointed by the Legislatures of the States in the following ratio; to wit–one for each State not exceeding 200,000 [1] inhab^ts two for each above y^t number & not exceeding 300,000. and three for each State exceeding 300,000.–M^r Broome 2^ded. the motion. [2]

[ [1] The Journal gives it 100,000.—Journal of the Federal Convention, 190.

[ [2] "Mr. Broom is a plain good Man, with some abilities, but nothing to render him conspicuous. He is silent in public, but chearful and conversable in private. He is about 35 years old."–Pierce's Notes, Am. Hist. Rev., iii., 330.

M^r Rutlidge was opposed to all the modes, except the appointm^t by the Nat^l Legislature. He will be sufficiently independent, if he be not re-eligible.

M^r Gerry preferred the motion of M^r Elseworth to an appointm^t by the Nat^l Legislature, or by the people; tho' not to an app^t by the State Executives. He moved that the electors proposed by M^r E. should be 25 in number, and allotted in the following proportion. to N. H. 1. to Mas. 3. to R. I. 1. to Con^t 2. to N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2. V^a 3. N. C. 2. S. C. 2. Geo. 1.

The question as moved by M^r Elseworth being divided, on the 1^st part shall y^e Nat^l Executive be appointed by Electors?

Mas. div^d. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.

On 2^d part shall the Electors be chosen by the State Legislatures?

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. ay. S. C. no. Geo. ay.

The part relating to the ratio in which the States s^d chuse electors was postponed nem. con.

M^r L. Martin moved that the Executive be ineligible a 2^d time.

M^r Williamson, 2^ds the motion. He had no great confidence in Electors to be chosen for the special purpose. They would not be the most respectable citizens; but persons not occupied in the high offices of Gov^t. They would be liable to undue influence, which might the more readily be practised as some of them will probably be in appointment 6 or 8 months before the object of it comes on.

M^r Elseworth supposed any persons might be appointed Electors, excepting, solely, members of the Nat^l Legislature.

On the question Shall he be ineligible a 2^d time?

Mas. no. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. ay. S. C. ay. Geo. no.

On the question Shall the Executive continue for 7 years? It passed in the negative

Mas. div^d. Con^t ay. [3] N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. div^d. S. C. ay. Geo. ay.

[ [3] In the printed Journal Con^t, no: N. Jersey ay.–Madison's Note.

M^r King was afraid we sh^d shorten the term too much.

M^r Gov^r Morris was for a short term, in order to avoid impeach^ts which w^d be otherwise necessary.

M^r Butler was ag^st the frequency of the elections. Geo. & S. C. were too distant to send electors often.

M^r Elseworth was for 6 years. If the elections be too frequent, the Executive will not be firm eno. There must be duties which will make him unpopular for the moment. There will be outs as well as ins. His administration therefore will be attacked and misrepresented.

M^r Williamson was for 6 years. The expence will be considerable & ought not to be unnecessarily repeated. If the Elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted.

On the question for 6 years?

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

Adjourned

Friday July 20. in Convention.

The postponed Ratio of Electors for appointing the Executive; to wit 1 for each State whose inhabitants do not exceed 100.000. &c. being taken up.

M^r Madison observed that this would make in time all or nearly all the States equal. Since there were few that would not in time contain the number of inhabitants intitling them to 3 Electors; that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the States.

M^r Gerry moved that in the 1^st instance the Electors should be allotted to the States in the following ratio: to N. H. 1. Mass. 3. R. I. 1. Con^t 2. N. Y. 2. N. J. 2. P^a 3. Del. 1. M^d 2. V^a 3. N. C. 2. S. C. 2. Geo. 1.

On the question to postpone in order to take up this motion of M^r Gerry. It passed in the affirmative

Mass. ay. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Elseworth moved that 2 Electors be allotted to N. H. Some rule ought to be pursued; and N. H. has more than 100,000 inhabitants. He thought it would be proper also to allot 2. to Georgia.

M^r Broom & M^r Martin moved to postpone M^r Gerry's allotment of Electors, leaving a fit ratio to be reported by the Committee to be appointed for detailing the Resolutions.

On this motion,

Mass. no. C^t no. N. J. ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.

M^r Houston 2^ded the motion of M^r Elseworth to add another Elector to N. H. & Georgia. On the Question;

Mass. no. C^t ay. N. J. no. P^a no. Del. no. M^d no. V^a no. N. C. no. S. C. ay. Geo. ay.

M^r Williamson moved as an amendment to M^r Gerry's allotment of Electors in the 1^st instance that in future elections of the Nat^l Executive, the number of Electors to be appointed by the several States shall be regulated by their respective numbers of Representatives in the 1^st branch pursuing as nearly as may be the present proportions.

On question on M^r Gerry's ratio of Electors

Mass. ay. C^t ay. N. J. no. P^a ay. Del. no. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. no.

"to be removable on impeachment and conviction for malpractice or neglect of duty," see Resol. 9.

M^r Pinkney & M^r Gov^r Morris moved to strike out this part of the Resolution. M^r P. observ^d he ought not to be impeachable whilst in office.

M^r Davie. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive.

M^r Wilson concurred in the necessity of making the Executive impeachable whilst in office.

M^r Gov^r Morris. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be a sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach.

Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Nat^l Legislature. One objection ag^st Electors was the danger of their being corrupted by the Candidates, & this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?

Doc^r Franklin was for retaining the clause as favorable to the Executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out ag^st this as unconstitutional. What was the practice before this in cases where the Chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in w^ch he was not only deprived of his life but of the opportunity of vindicating his character. It w^d be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal where he should be unjustly accused.

M^r Gov^r Morris admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined.

M^r Madison thought it indispensable that some provision should be made for defending the Community ag^st the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the Public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

M^r Pinkney did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.

M^r Gerry urged the necessity of impeachments. A good Magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief magistrate could do no wrong.

M^r King expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Gov^ts should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a form should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature. Like them, particularly the Senate whose members would continue in appointm^t the same term of 6 years he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.

M^r Randolph. The propriety of impeachments was a favorite principle with him. Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the Public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen (from Col. Hamilton) of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just ground of impeachment existed.

Doct^r Franklin mentioned the case of the Prince of Orange during the late war. An agreement was made between France & Holland; by which their two fleets were to unite at a certain time & place. The Dutch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more & more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. Had he been impeachable, a regular & peaceable enquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the Public.

M^r King remarked that the case of the Statholder was not applicable. He held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility to the electors being an equivalent security.

M^r Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive, ought to be subject to impeachment & removal.

M^r Pinkney apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: He presumed that his powers would be so circumscribed as to render impeachments unnecessary.

M^r Gov^r Morris's opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any length of time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard ag^st it by displacing him. One would think the King of England well secured ag^st bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II. was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery: Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.

It was moved & 2^ded to postpone the question of impeachments which was negatived, Mas. & S. Carolina only being ay.

On y^e Question, Shall the Executive be removable on impeachments &c.?

Mass. no. C^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

"Executive to receive fixed compensation." Agreed to nem. con.

"to be paid out of the national Treasury" agreed to, N. Jersey only in the negative.

M^r Gerry & Gov^r Morris moved that the Electors of the Executive shall not be members of the Nat^l Legislature, nor officers of the U. States, nor shall the Electors themselves be eligible to the supreme magistracy. Agreed to nem. con.

Doc^r McClurg [4] asked whether it would not be necessary, before a Committee for detailing the Constitution should be appointed, to determine on the means by which the Executive, is to carry the laws into effect, and to resist combinations ag^st them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use? As the Resolutions now stand the Committee will have no determinate directions on this great point.

[ [4] "Mr. McClurg is a learned physician, but having never appeared before in public life his character as a politician is not sufficiently known. He attempted once or twice to speak, but with no great success. It is certain that he has a foundation of learning, on which, if he pleases, he may erect a character of high renown. The Doctor is about 38 years of age, a Gentleman of great respectability, and of a fair and unblemished character."–Pierce's Notes, Am. Hist. Rev., iii., 332.

M^r Wilson thought that some additional directions to the Committee w^d be necessary.

M^r King. The Committee are to provide for the end. Their discretionary power to provide for the means is involved according to an established axiom.

Adjourned.

Saturday July 21 in Convention

M^r Williamson moved that the Electors of the Executive should be paid out of the National Treasury for the Service to be performed by them. Justice required this: as it was a national service they were to render. The motion was agreed to Nem. Con.

M^r Wilson moved as an amendment to Resolⁿ 10. that the supreme Nat^l Judiciary should be associated with the Executive in the Revisionary power. This proposition had been before made and failed: but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: The Judiciary ought to have an opportunity of remonstrating ag^st projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature.–M^r Madison 2^ded the motion.

M^r Ghorum did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The Judges in England have no such additional provision for their defence, yet their jurisdiction is not invaded. He thought it would be best to let the Executive alone be responsible, and at most to authorize him to call on Judges for their opinions.

M^r Elseworth approved heartily of the motion. The aid of the Judges will give more wisdom & firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive cannot be expected always to possess. The Law of Nations also will frequently come into question. Of this the Judges alone will have competent information.

M^r Madison considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary departm^t by giving it an additional opportunity of defending itself ag^st Legislative encroachments: It would be useful to the Executive, by inspiring additional confidence & firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity & technical propriety in the laws, qualities peculiarly necessary; & yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check ag^st a pursuit of those unwise & unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged ag^st the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; & suggested the necessity of giving every defensive authority to the other departments that was consistent with Republican principles.

M^r Mason said he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail.

M^r Gerry did not expect to see this point which had undergone full discussion, again revived. The object he conceived of the Revisionary power was merely to secure the Executive department ag^st legislative encroachment. The Executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them. The motion was liable to strong objections. It was combining & mixing together the Legislative & the other departments. It was establishing an improper coalition between the Executive & Judiciary departments. It was making statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights & interests. It was making the Expositors of the Laws, the Legislators which ought never to be done. A better expedient for correcting the laws, would be to appoint as had been done in Pen^a, a person or persons of proper skill, to draw bills for the Legislature.

M^r Strong thought with M^r Gerry that the power of making ought to be kept distinct from that of expounding, the laws. No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they had taken in framing the laws.

M^r Gov^r Morris. Some check being necessary on the Legislature, the question is in what hands it should be lodged. On one side it was contended that the Executive alone ought to exercise it. He did not think that an Executive appointed for 6 years, and impeachable whilst in office w^d be a very effectual check. On the other side it was urged that he ought to be reinforced by the Judiciary department. Ag^st this it was objected that Expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined by an attention to facts. The truth was that the Judges in England had a great share in y^e Legislation. They are consulted in difficult & doubtful cases. They may be & some of them are members of the Legislature. They are or may be members of the privy Council, and can there advise the Executive as they will do with us if the motion succeeds. The influence the English Judges may have in the latter capacity in strengthening the Executive check can not be ascertained, as the King by his influence in a manner dictates the laws. There is one difference in the two cases however which disconcerts all reasoning from the British to our proposed Constitution. The British Executive has so great an interest in his prerogatives and such powerful means of defending them that he will never yield any part of them. The interest of our Executive is so inconsiderable & so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. He was extremely apprehensive that the auxiliary firmness & weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations than from any other source. It had been said that the Legislature ought to be relied on as the proper Guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition no check will be wanted. On the former a strong check will be necessary: and this is the proper supposition. Emissions of paper money, largesses to the people–a remission of debts and similar measures, will at some times be popular, and will be pushed for that reason. At other times such measures will coincide with the interests of the Legislature themselves, & that will be a reason not less cogent for pushing them. It may be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether.

M^r L. Martin, considered the association of the Judges with the Executive as a dangerous innovation; as well as one which could not produce the particular advantage expected from it. A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating ag^st popular measures of the Legislature. Besides in what mode & proportion are they to vote in the Council of Revision?

M^r Madison could not discover in the proposed association of the Judges with the Executive in the Revisionary check on the Legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. On the contrary he thought it an auxiliary precaution in favor of the maxim. If a Constitutional discrimination of the departments on paper were a sufficient security to each ag^st encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the Theory in practice. In so doing we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in the legislature, and in the Executive Councils, and to submit to their previous examination all laws of a certain description, but it was a part of their Constitution that the Executive might negative any law whatever; a part of their Constitution which had been universally regarded as calculated for the preservation of the whole. The objection ag^st a union of the Judiciary & Executive branches in the revision of the laws, had either no foundation or was not carried far enough. If such a Union was an improper mixture of powers, or such a Judiciary check on the laws, was inconsistent with the Theory of a free Constitution, it was equally so to admit the Executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.

Col. Mason observed that the defence of the Executive was not the sole object of the Revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the Constitution of the Legislature, it would still so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect not only of hindering the final passage of such laws; but would discourage demagogues from attempting to get them passed. It has been said (by M^r L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences.

M^r Wilson. The separation of the departments does not require that they should have separate objects but that they should act separately tho' on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object.

M^r Gerry had rather give the Executive an absolute negative for its own defence than thus to blend together the Judiciary & Executive departments. It will bind them together in an offensive and defensive alliance ag^st the Legislature, and render the latter unwilling to enter into a contest with them.

M^r Gov^r Morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws. Would it not be very natural for the two latter after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that as a security ag^st legislative acts of the former which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence, or at least to have an opportunity of stating their objections ag^st acts of encroachment? And would any one pretend that such a right tended to blend & confound powers that ought to be separately exercised? As well might it be said that If three neighbours had three distinct farms, a right in each to defend his farm ag^st his neighbours, tended to blend the farms together.

M^r Ghorum. All agree that a check on the Legislature is necessary. But there are two objections ag^st admitting the Judges to share in it which no observations on the other side seem to obviate, the 1^st is that the Judges ought to carry into the exposition of the laws no prepossessions with regard to them. 2^d that as the Judges will outnumber the Executive, the revisionary check would be thrown entirely out of the Executive hands, and instead of enabling him to defend himself, would enable the Judges to sacrifice him.

M^r Wilson. The proposition is certainly not liable to all the objections which have been urged ag^st it. According (to M^r Gerry) it will unite the Executive & Judiciary in an offensive & defensive alliance ag^st the Legislature. According to M^r Ghorum it will lead to a subversion of the Executive by the Judiciary influence. To the first gentleman the answer was obvious: that the joint weight of the two departments was necessary to balance the single weight of the Legislature. To the 1^st objection stated by the other Gentleman it might be answered that supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. To the 2^d objection, that such a rule of voting might be provided in the detail as would guard ag^st it.

M^r Rutlidge thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary. The Executive could advise with the officers of State, as of war, finance &c. and avail himself of their information & opinions.

On Question on M^r Wilson's motion for joining the Judiciary in the Revision of laws it passed in the negative—

Mass. no. Con^t ay. N. J. not present. P^a div^d. Del. no. M^d ay. V^a ay. N. C. no. S. C. no. Geo. div^d.

Resol. 10, giving the Ex a qualified veto, without the amend^t was then ag^d to nem. con.

The motion made by M^r Madison July 18. & then postponed, "that the Judges sh^d be nominated by the Executive & such nominations become appointments unless disagreed to by 2/3 of the 2^d branch of the Legislature," was now resumed.

M^r Madison stated as his reasons for the motion, 1. that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2^d b. of it, who might hide their selfish motives under the number concerned in the appointment. 2. that in case of any flagrant partiality or error, in the nomination it might be fairly presumed that 2/3 of the 2^d branch would join in putting a negative on it. 3. that as the 2^d b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that there sh^d be a concurrence of two authorities, in one of which the people, in the other the States should be represented. The Executive Magistrate w^d be considered as a national officer, acting for and equally sympathizing with every part of the U. States. If the 2^d branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of y^e Northern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.

M^r Pinkney was for placing the appointm^t in the 2^d b. exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust.

M^r Randolph w^d have preferred the mode of appointm^t proposed formerly by M^r Ghorum, as adopted in the Constitution of Mass^ts but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniences will proportionally prevail if the appointments be referred to either branch of the Legislature or to any other authority administered by a number of individuals.

M^r Elseworth would prefer a negative in the Executive on a nomination by the 2^d branch, the negative to be overruled by a concurrence of 2/3 of the 2^d b. to the mode proposed by the motion; but preferred an absolute appointment by the 2^d branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses & intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.

M^r Gov^r Morris supported the motion. 1. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one's own cause, is the appointment of the Judge. 2. It had been said the Executive would be uninformed of characters. The reverse was y^e truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U. S. required by the nature of his administration, will or may have the best possible information. 3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of Jealousy in the present case. He added that if the Objections ag^st an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature or by any part of it.

M^r Gerry. The appointment of the Judges like every other part of the Constitution sh^d be so modelled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him also a strong objection that 2/3 of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good.

M^r Madison, observed that he was not anxious that 2/3 should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.

Col. Mason found it his duty to differ from his colleagues in their opinions & reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive & Senate, the appointment was Substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate & require some precautions in the case of regulating navigation, commerce & imposts; but he could not see that it had any connection with the Judiciary department.

On the question, the motion now being "that the executive should nominate & such nominations should become appointments unless disagreed to by the Senate"

Mass. ay. C^t no. P^a ay. Del. no. M^d no. V^a ay. N. C. no. S. C. no. Geo. no.

On question for agreeing to the clause as it stands by which the Judges are to be appointed by the 2^d branch

Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no. N. C. ay. S. C. ay. Geo. ay.

Adjourned.

Monday July 23. in Convention

M^r John Langdon & M^r Nicholas Gilman [5] from N. Hampshire, [6] took their seats.

[ [5] M^r Gilman is modest, genteel, and sensible. There is nothing brilliant or striking in his character, but there is something respectable and worthy in the man.–About 30 years of age."–Pierce's Notes, Am. Hist. Rev., iii., 325.

He did not speak in the convention.

[ [6] The act appointing deputies to the convention was not passed by the New Hampshire Legislature till June 27, 1787.—Journal of Federal Convention, 17.

Resol:ⁿ 17. that provision ought to be made for future amendments of the Articles of Union, agreed to, nem. con.

Resolⁿ 18. "requiring the Legis: Execut: & Jud^y of the States to be bound by oath to support the articles of Union," taken into consideration.

M^r Williamson suggests that a reciprocal oath should be required from the National officers, to support the Governments of the States.

M^r Gerry moved to insert as an amendm^t that the oath of the officers of the National Government also should extend to the support of the Nat^l Gov^t which was agreed to nem. con.

M^r Wilson said he was never fond of oaths, considering them as a left handed security only. A good Gov^t did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the existing Gov^t in case future alterations should be necessary; and prove an obstacle to Resol: 17. just ag^d to.

M^r Ghorum did not know that oaths would be of much use; but could see no inconsistency between them and the 17. Resol. or any regular amend^t of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution, could never be regarded as a breach of the Constitution, or of any oath to support it.

M^r Gerry thought with M^r Ghorum there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the Resolution. On the other side he thought one good effect would be produced by it. Hitherto the officers of the two Governments had considered them as distinct from, and not as parts of the General System, & had in all cases of interference given a preference to the State Gov^ts. The proposed oath will cure that error.

The Resolⁿ (18) was agreed to nem. con.

Resol: 19. referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying it was next taken into consideration.

M^r Elseworth moved that it be referred to the Legislatures of the States for ratification. M^r Patterson 2^ded the motion.

Col. Mason considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment he observed that this doctrine should be cherished as the basis of free Government. Another strong reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Gov^t would stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some weight. In some of the States the Gov^ts were not derived from the clear & undisputed authority of the people. This was the case in Virginia. Some of the best & wisest citizens considered the Constitution as established by an assumed authority. A national Constitution derived from such a source would be exposed to the severest criticisms.

M^r Randolph. One idea has pervaded all our proceedings, to wit, that opposition as well from the States as from individuals, will be made to the System to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext by the mode of ratifying it. Added to other objections ag^st a ratification by the Legislative authority only, it may be remarked that there have been instances in which the authority of the Common law has been set up in particular States ag^st that of the Confederation which has had no higher sanction than Legislative ratification.–Whose opposition will be most likely to be excited ag^st the System? That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those brought with him into the Convention. It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures where this class of men, have their full influence to a field in which their efforts can be less mischievous. It is moreover worthy of consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon to refer the question to the people.

M^r Gerry. The arguments of Col. Mason & M^r Randolph prove too much. They prove an unconstitutionality in the present federal system & even in some of the State Gov^ts. Inferences drawn from such a source must be inadmissible. Both the State Gov^ts & the federal Gov^t have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any State Constitution. The last article of it authorizing alterations must consequently be so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article. Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or influence the sense of the people.

M^r Ghorum was ag^st referring the plan to the Legislatures. 1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the Legislature who are to lose the power which is to be given up to the Gen^l Gov^t. 2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the plan through the Legislatures, than thro' a Convention. 3. in the States many of the ablest men are excluded from the Legislatures, but may be elected into a convention. Among these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be valuable in the formation & establishment of the Constitution of Massach^ts. 4. the Legislatures will be interrupted with a variety of little business, by artfully pressing which designing men will find means to delay from year to year, if not to frustrate altogether the national system. 5. If the last art: of the Confederation is to be pursued the unanimous concurrence of the States will be necessary. But will any one say, that all the States are to suffer themselves to be ruined, if Rho. Island should persist in her opposition to general measures. Some other States might also tread in her steps. The present advantage which N. York seems to be so much attached to, of taxing her neighbours by the regulation of her trade, makes it very probable, that she will be of the number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the System without waiting for the unanimous concurrence of the States.

M^r Elseworth. If there be any Legislatures who should find themselves incompetent to the ratification, he should be content to let them advise with their constituents and pursue such a mode as w^d be competent. He thought more was to be expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the public debt; and the idea of strengthening the Nat^l Gov^t carries with it that of strengthening the public debt. It was said by Col. Mason 1. that the Legislatures have no authority in this case. 2. that their successors having equal authority could rescind their acts. As to the 2^d point he could not admit it to be well founded. An Act to which the States by their Legislatures, make themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1^st point, he observed that a new sett of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people, or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent. Their ratification has been acquiesced in without complaint. To whom have Cong^s applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact is that we exist at present, and we need not enquire how, as a federal Society, united by a charter one article of which is that alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be observed, the States must unanimously concur in the proposed innovations. He would answer that if such were the urgency & necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people; the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.

M^r Williamson thought the Resol:ⁿ (19) so expressed as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States.

M^r Gov^r Morris considered the inference of M^r Elseworth from the plea of necessity as applied to the establishment of a new System on y^e consent of the people of a part of the States, in favor of a like establishm^t on the consent of a part of the Legislatures, as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the Legislatures: Legislative alterations not conformable to the federal compact, would clearly not be valid. The Judges would consider them as null & void. Whereas in case of an appeal to the people of the U. S., the supreme authority, the federal compact may be altered by a majority of them; in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The amendm^t moved by M^r Elseworth erroneously supposes that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation.

M^r King thought with M^r Elseworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation, being equivalent to a formal ratification by the people. He thought with M^r E. also that the plea of necessity was as valid in the one case as the other. At the same time he preferred a reference to the authority of the people expressly delegated to Conventions, as the most certain means of obviating all disputes & doubts concerning the legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it. He remarked that among other objections made in the State of N. York to granting powers to Cong^s one had been that such powers as would operate within the State, could not be reconciled to the Constitution; and therefore were not grantible by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support & maintain the existing Constitutions.

M^r Madison thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions, and it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of State Conventions in preference to the Legislatures for examining and adopting it.

On question on M^r Elseworth's motion to refer the plan to the Legislatures of the States

N. H. no. Mass. no. C^t ay. P^a no. Del. ay. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.

M^r Gov^r Morris moved that the reference of the plan be made to one general Convention, chosen & authorized by the people to consider, amend, & establish the same.–Not seconded.

On question for agreeing to Resolution 19. touching the mode of Ratification as reported from the Committee of the Whole; viz, to refer the Constⁿ, after the approbation of Cong^s to assemblies chosen by the people;

N. H. ay. Mass. ay. C^t ay. P^a ay. Del. no. M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Gov^r Morris & M^r King moved that the representation in the second branch consist of –— members from each State, who shall vote per capita.

M^r Elseworth said he had always approved of voting in that mode.

M^r Gov^r Morris moved to fill the blank with three. He wished the Senate to be a pretty numerous body. If two members only should be allowed to each State, and a majority be made a quorum, the power would be lodged in 14 members, which was too small a number for such a trust.

M^r Ghorum preferred two to three members for the blank. A small number was most convenient for deciding on peace & war &c. which he expected would be vested in the 2^d branch. The number of States will also increase. Kentucky, Vermont, the Province of Mayne & Franklin will probably soon be added to the present number. He presumed also that some of the largest States would be divided. The strength of the General Gov^t will lie not in the largeness, but in the smallness of the States.

Col. Mason thought 3 from each State including new States would make the 2^d branch too numerous. Besides other objections, the additional expence ought always to form one, where it was not absolutely necessary.

M^r Williamson. If the number be too great, the distant States will not be on an equal footing with the nearer States. The latter can more easily send & support their ablest Citizens. He approved of the voting per capita.

On the question for filling the blank with "three"

N. H. no. Mass. no. Con^t no. P^a ay. Del. no. V^a no. N. C. no. S. C. no. Geo. no.

On question for filling it with "two." Agreed to nem. con.

M^r L Martin was opposed to voting per Capita, as departing from the idea of the States being represented in the 2^d branch.

M^r Carroll, [7] was not struck with any particular objection ag^st the mode; but he did not wish so hastily to make so material an innovation.

[ [7] "Mr. Carrol is a Man of large fortune, and influence in his State. He possesses plain good sense, and is in the full confidence of his Countrymen. This Gentleman is about [blank] years of age."–Pierce's Notes, Am. Hist. Rev., iii., 330.

On the question on the whole motion viz. the 2^d b. to consist of 2 members from each State and to vote per Capita,

N. H. ay. Mass. ay. C^t ay. P^a ay. Del. ay. M^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

M^r Houston [8] & M^r Spaight moved "that the appointment of the Executive by Electors chosen by the Legislatures of the States, be reconsidered." M^r Houston urged the extreme inconveniency & the considerable expence, of drawing together men from all the States for the single purpose of electing the Chief Magistrate.

[ [8] "Mr. Houston is an Attorney at Law, and has been Member of Congress for the State of Georgia. He is a Gentleman of Family, and was educated in England. As to his legal or political knowledge he has very little to boast of. Nature seems to have done more for his corporeal than mental powers. His Person is striking, but his mind very little improved with useful or elegant knowledge. He has none of the talents requisite for the Orator, but in public debate is confused and irregular. Mr. Houston is about 30 years of age of an amiable and sweet temper, and of good and honorable principles."–Pierce's Notes, Am. Hist. Rev., iii., 334.

On the question which was put without any debate

N. H. ay. Mass. ay. Ct. ay. P^a no. Del. ay. M^d no. Virg^a no. N. C. ay. S. C. ay. Geo. ay.

Ordered that tomorrow be assigned for the reconsideration, Con^t & Pen^a no–all the rest ay.

M^r Gerry moved that the proceedings of the Convention for the establishment of a Nat^l Gov^t (except the part relating to the Executive), be referred to a Committee to prepare & report a Constitution conformable thereto.

Gen^l Pinkney reminded the Convention that if the Committee should fail to insert some security to the Southern States ag^st an emancipation of slaves, and taxes on exports, he sh^d be bound by duty to his State to vote ag^st their Report. The app^t of a Com^e as moved by M^r Gerry. Ag^d to nem. con.

Shall the Com^e consist of 10 members one from each State pres^t–All the States were no, except Delaware, ay.

Shall it consist of 7. members

N. H. ay. Mas. ay. C^t ay. P^a no. Del. no. M^d ay. V^a no. N. C. no. S. C. ay. Geo. no.

The question being lost by an equal division of Votes.

It was agreed, nem-con- that the Committee consist of 5 members to be appointed tomorrow.

Adjourned.

Tuesday July 24. in Convention

The appointment of the Executive by Electors reconsidered.

M^r Houston moved that he be appointed by the "Nat^l Legislature," instead of "Electors appointed by the State Legislatures" according to the last decision of the mode. He dwelt chiefly on the improbability, that capable men would undertake the service of Electors from the more distant States.

M^r Spaight seconded the motion.

M^r Gerry opposed it. He thought there was no ground to apprehend the danger urged by M^r Houston. The election of the Executive Magistrate will be considered as of vast importance and will create great earnestness. The best men, the Governours of the States will not hold it derogatory from their character to be the electors. If the motion should be agreed to, it will be necessary to make the Executive ineligible a 2^d time, in order to render him independent of the Legislature; which was an idea extremely repugnant to his way of thinking.

M^r Strong supposed that there would be no necessity, if the Executive should be appointed by the Legislature, to make him ineligible a 2^d time; as new elections of the Legislature will have intervened; and he will not depend for his 2^d appointment on the same sett of men as his first was rec^d from. It had been suggested that gratitude for his past appointment w^d produce the same effect as dependence for his future appointment. He thought very differently. Besides this objection would lie ag^st the Electors who would be objects of gratitude as well as the Legislature. It was of great importance not to make the Gov^t too complex which would be the case if a new sett of men like the Electors should be introduced into it. He thought also that the first characters in the States would not feel sufficient motives to undertake the office of Electors.

M^r Williamson was for going back to the original ground; to elect the Executive for 7 years and render him ineligible a 2^d time. The proposed Electors would certainly not be men of the 1^st nor even of the 2^d grade in the States. These would all prefer a seat either in the Senate or the other branch of the Legislature. He did not like the Unity in the Executive. He had wished the Executive power to be lodged in three men taken from three districts into which the States should be divided. As the Executive is to have a kind of veto on the laws, and there is an essential difference of interests between the N. & S. States, particularly in the carrying trade, the power will be dangerous, if the Executive is to be taken from part of the Union, to the part from which he is not taken. The case is different here from what it is in England; where there is a sameness of interests throughout the Kingdom. Another objection ag^st a single Magistrate is that he will be an elective King, and will feel the spirit of one. He will spare no pains to keep himself in for life, and will then lay a train for the succession of his children. It was pretty certain he thought that we should at some time or other have a King; but he wished no precaution to be omitted that might postpone the event as long as possible.–Ineligibility a 2^d time appeared to him to be the best precaution. With this precaution he had no objection to a longer term than 7 years. He would go as far as 10 or 12 years.

M^r Gerry moved that the Legislatures of the States should vote by ballot for the Executive in the same proportions as it had been proposed they should chuse electors; and that in case a majority of the votes should not centre on the same person, the 1^st branch of the Nat^l Legislature should chuse two out of the 4 candidates having most votes, and out of these two, the 2^d branch should chuse the Executive.

M^r King seconded the motion–and on the Question to postpone in order to take it into consideration. The noes were so predominant, that the States were not counted.

Question on M^r Houston's motion that the Executive be app^d by the Na^l Legislature.

N. H. ay. Mass. ay. C^t no. N. J. ay. P^a no. Del. ay. M^d no. V^a no. N. C. ay. S. C. ay. Geo. ay.

M^r L. Martin & M^r Gerry moved to re-instate the ineligibility of the Executive a 2^d time.

M^r Elseworth. With many this appears a natural consequence of his being elected by the Legislature. It was not the case with him. The Executive he thought should be reelected if his conduct proved him worthy of it. And he will be more likely to render himself, worthy of it if he be rewardable with it. The most eminent characters also, will be more willing to accept the trust under this condition, than if they foresee a necessary degradation at a fixt period.

M^r Gerry. That the Executive sh^d be independent of the Legislature is a clear point. The longer the duration of his appointment the more will his dependence be diminished. It will be better then for him to continue 10. 15. or even 20. years and be ineligible afterwards.

M^r King was for making him re-eligible. This is too great an advantage to be given up for the small effect it will have on his dependence, if impeachments are to lie. He considered these as rendering the tenure during pleasure.

M^r L. Martin, suspending his motion as to the ineligibility, moved "that the appointm^t of the Executive shall continue for Eleven years.

M^r Gerry suggested fifteen years.

M^r King twenty years. This is the medium life of princes. [9]

[ [9] This might possibly be meant as a carricature of the previous motions in order to defeat the object of them.–Madison's Note.

M^r Davie eight years.

M^r Wilson. The difficulties & perplexities into which the House is thrown proceed from the election by the Legislature which he was sorry had been reinstated. The inconveniency of this mode was such that he would agree to almost any length of time in order to get rid of the dependence which must result from it. He was persuaded that the longest term would not be equivalent to a proper mode of election, unless indeed it should be during good behaviour. It seemed to be supposed that at a certain advance of life, a continuance in office would cease to be agreeable to the officer, as well as desirable to the public. Experience had shewn in a variety of instances that both a capacity & inclination for public service existed in very advanced stages. He mentioned the instance of a Doge of Venice who was elected after he was 80 years of age. The Popes have generally been elected at very advanced periods, and yet in no case had a more steady or a better concerted policy been pursued than in the Court of Rome. If the Executive should come into office at 35 years of age, which he presumes may happen & his continuance should be fixt at 15 years, at the age of 50. in the very prime of life, and with all the aid of experience, he must be cast aside like a useless hulk. What an irreparable loss would the British Jurisprudence have sustained, had the age of 50. been fixt there as the ultimate limit of capacity or readiness to serve the public. The great luminary (L^d Mansfield) held his seat for thirty years after his arrival at that age. Notwithstanding what had been done he could not but hope that a better mode of election would yet be adopted; and one that would be more agreeable to the general sense of the House. That time might be given for further deliberation he w^d move that the present question be postponed till tomorrow.

M^r Broom seconded the motion to postpone.

M^r Gerry. We seem to be entirely at a loss on this head. He would suggest whether it would not be advisable to refer the clause relating to the Executive to the Committee of detail to be appointed. Perhaps they will be able to hit on something that may unite the various opinions which have been thrown out.

M^r Wilson. As the great difficulty seems to spring from the mode of election, he w^d suggest a mode which had not been mentioned. It was that the Executive be elected for 6 years by a small number, not more than 15 of the Nat^l Legislature, to be drawn from it, not by ballot, but by lot and who should retire immediately and make the election without separating. By this mode intrigue would be avoided in the first instance, and the dependence would be diminished. This was not he said a digested idea and might be liable to strong objections.

M^r Gov^r Morris. Of all possible modes of appointment that by the Legislature is the worst. If the Legislature is to appoint, and to impeach or to influence the impeachment, the Executive will be the mere creature of it. He had been opposed to the impeachment but was now convinced that impeachments must be provided for, if the app^t was to be of any duration. No man w^d say, that an Executive known to be in the pay of an Enemy, should not be removable in some way or other. He had been charged heretofore (by Col. Mason) with inconsistency in pleading for confidence in the Legislature on some occasions, & urging a distrust on others. The charge was not well founded. The Legislature is worthy of unbounded confidence in some respects, and liable to equal distrust in others. When their interest coincides precisely with that of their Constituents, as happens in many of their Acts, no abuse of trust is to be apprehended. When a strong personal interest happens to be opposed to the general interest, the Legislature cannot be too much distrusted. In all public bodies there are two parties. The Executive will necessarily be more connected with one than with the other. There will be a personal interest therefore in one of the parties to oppose as well as in the other to support him. Much had been said of the intrigues, that will be practised by the Executive to get into office. Nothing had been said on the other side of the intrigues to get him out of office. Some leader of a party will always covet his seat, will perplex his administration, will cabal with the Legislature, till he succeeds in supplanting him. This was the way in which the King of England was got out, he meant the real King, the Minister. This was the way in which Pitt (L^d Chatham) forced himself into place. Fox was for pushing the matter still farther. If he had carried his India bill, which he was very near doing, he would have made the Minister, the King in form almost as well as in substance. Our President will be the British Minister, yet we are about to make him appointable by the Legislature. Something had been said of the danger of Monarchy. If a good government should not now be formed, if a good organization of the Executive should not be provided, he doubted whether we should not have something worse than a limited monarchy. In order to get rid of the dependence of the Executive on the Legislature, the expedient of making him ineligible a 2^d time had been devised. This was as much as to say we sh^d give him the benefit of experience, and then deprive ourselves of the use of it. But make him ineligible a 2^d time–and prolong his duration even to 15 years, will he by any wonderful interposition of providence at that period cease to be a man? No he will be unwilling to quit his exaltation, the road to his object thro' the Constitution will be shut; he will be in possession of the sword, a civil war will ensue, and the Com̃ander of the victorious army on which ever side, will be the despot of America. This consideration renders him particularly anxious that the Executive should be properly constituted. The vice here would not, as in some other parts of the system be curable. It is the most difficult of all rightly to balance the Executive. Make him too weak: The Legislature will usurp his powers. Make him too strong. He will usurp on the Legislature. He preferred a short period, a re-eligibility, but a different mode of election. A long period would prevent an adoption of the plan: it ought to do so. He sh^d himself be afraid to trust it. He was not prepared to decide on M^r Wilson's mode of election just hinted by him. He thought it deserved consideration. It would be better that chance sh^d decide than intrigue.

On a question to postpone the consideration of the Resolution on the subject of the Executive

N. H. no. Mass. no. C^t ay. N. J. no. P^a ay. Del. div^d. M^d ay. V^a ay. N. C. no. S. C. no. Geo. no.

M^r Wilson then moved that the Executive be chosen every –— years by –— Electors to be taken by lot from the Nat^t Legislature who shall proceed immediately to the choice of the Executive and not separate until it be made."

M^r Carrol 2^ds the motion.

M^r Gerry. This is committing too much to chance. If the lot should fall on a sett of unworthy men, an unworthy Executive must be saddled on the Country. He thought it had been demonstrated that no possible mode of electing by the Legislature could be a good one.

M^r King. The lot might fall on a majority from the same State which w^d ensure the election of a man from that State. We ought to be governed by reason, not by chance. As nobody seemed to be satisfied, he wished the matter to be postponed.

M^r Wilson did not move this as the best mode. His opinion remained unshaken that we ought to resort to the people for the election. He seconded the postponement.

M^r Gov^r Morris observed that the chances were almost infinite ag^st a majority of Electors from the same State.

On a question whether the last motion was in order, it was determined in the affirmative: 7 ays. 4 noes.

On the question of postponem^t it was agreed to nem. con.

M^r Carrol took occasion to observe that he considered the clause declaring that direct taxation on the States should be in proportion to representation, previous to the obtaining an actual census, as very objectionable, and that he reserved to himself the right of opposing it, if the Report of the Committee of detail should leave it in the plan.

M^r Gov^r Morris hoped the Committee would strike out the whole of the clause proportioning direct taxation to representation. He had only meant it as a bridge [10] to assist us over a certain gulph; having passed the gulph the bridge may be removed. He thought the principle laid down with so much strictness, liable to strong objections.

[ [10] The object was to lessen the eagerness on one side, & the opposition on the other, to the share of representation claimed by the S. States on account of the Negroes.–Madison's Note.

On a ballot for a Committee to report a Constitution conformable to the Resolutions passed by the Convention, the members chosen were

M^r Rutlidge, M^r Randolph, M^r Ghorum, M^r Elseworth, M^r Wilson—

On motion to discharge the Com^e of the whole from the propositions submitted to the Convention by M^r C. Pinkney as the basis of a constitution, and to refer them to the Committee of detail just appointed, it was ag^d to nem: con.

A like motion was then made & agreed to nem: con: with respect to the propositions of M^r Patterson.

Adjourned.

Wednesday July 25. In Convention

Clause relating to the Executive being again under consideration [11]

[ [11] "Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on, any but a natural born citizen."–John Jay to Washington, July 25, 1787 (Wash. MSS.).

M^r Elseworth moved "that the Executive be appointed by the Legislature," except when the magistrate last chosen shall have continued in office the whole term for which he was chosen, & be reeligible, in which case the choice shall be by Electors appointed by the Legislatures of the States for that purpose. By this means a deserving magistrate may be reelected without making him dependent on the Legislature.

M^r Gerry repeated his remark that an election at all by the Nat^l Legislature was radically and incurably wrong; and moved that the Executive be appointed by the Governours & Presidents of the States, with advice of their Councils, and where there are no Councils by Electors chosen by the Legislatures. The executives to vote in the following proportions: viz—

M^r Madison. There are objections ag^st every mode that has been, or perhaps can be proposed. The election must be made either by some existing authority under the Nat^l or State Constitutions–or by some special authority derived from the people–or by the people themselves.–The two Existing authorities under the Nat^l Constitution w^d be the Legislative & Judiciary. The latter he presumed was out of the question. The former was in his Judgment liable to insuperable objections. Besides the general influence of that mode on the independence of the Executive, 1. the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2. the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3. The Ministers of foreign powers would have and would make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governm^t a man attached to their respective politics & interests. No pains, nor perhaps expence, will be spared, to gain from the Legislature an appointm^t favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elective Magistrate has very little real power, his election has at all times produced the most eager interference of foreign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Nat^l Executive by the first was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Nat^l Legisl^re was to controul this propensity. One object of the Nat^l Executive, so far as it would have a negative on the laws, was to controul the Nat^l Legislature so far as it might be infected with a similar propensity. Refer the appointm^t of the Nat^l Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointm^t of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Nat^l Executive would be rendered subservient to them.–An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciary had not & he presumed w^d not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people–and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged ag^st it, and greatly preferable to an appointment by the Nat^l Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a further precaution, it might be required that they should meet at some place, distinct from the seat of Gov^t and even that no person within a certain distance of the place at the time sh^d be eligible. This Mode however had been rejected so recently & by so great a majority that it probably would not be proposed anew. The remaining mode was an election by the people or rather by the qualified part of them, at large: With all its imperfections he liked this best. He would not repeat either the general argum^ts. for or the objections ag^st this mode. He would only take notice of two difficulties which he admitted to have weight. The first arose from the disposition in the people to prefer a Citizen of their own State, and the disadvantage this w^d throw on the smaller States. Great as this objection might be he did not think it equal to such as lay ag^st every other mode which had been proposed. He thought too that some expedient might be hit upon that would obviate it. The second difficulty arose from the disproportion of qualified voters in the N. & S. States, and the disadvantages which this mode would throw on the latter. The answer to this objection was 1. that this disproportion would be continually decreasing under the influence of the Republican laws introduced in the S. States, and the more rapid increase of their population. 2. That local considerations must give way to the general interest. As an individual from the S. States, he was willing to make the sacrifice.

M^r Elseworth. The objection drawn from the different sizes of the States, is unanswerable. The Citizens of the largest States would invariably prefer the candidate within the State; and the largest States w^d invariably have the man.

Question on M^r Elseworth's motion as above.

N. H. ay. Mass. no. C^t ay. N. J. no. P^a ay. Del. no. M^d ay. V^a no. N. C. no. S. C. no. Geo. no.

M^r Pinkney moved that the election by the Legislature be qualified with a proviso that no person be eligible for more than 6 years in any twelve years. He thought this would have all the advantage & at the same time avoid in some degree the inconveniency, of an absolute ineligibility a 2^d time.

Col. Mason approved the idea. It had the sanction of experience in the instance of Cong^s and some of the Executives of the States. It rendered the Executive as effectually independent, as an ineligibility after his first election, and opened the way at the same time for the advantage of his future services. He preferred on the whole the election by the Nat^l Legislature: Tho' Candor obliged him to admit, that there was great danger of foreign influence, as had been suggested. This was the most serious objection with him that had been urged.

M^r Butler. The two great evils to be avoided are cabal at home, & influence from abroad. It will be difficult to avoid either if the Election be made by the Nat^l Legislature. On the other hand. The Gov^t should not be made so complex & unwieldy as to disgust the States. This would be the case, if the election sh^d be referred to the people. He liked best an election by Electors chosen by the Legislatures of the States. He was ag^st a re-eligibility at all events. He was also ag^st a ratio of votes in the States. An equality should prevail in this case. The reasons for departing from it do not hold in the case of the Executive as in that of the Legislature.

M^r Gerry approved of M^r Pinkney's motion as lessening the evil.