Article 2, Section 1, Clause 1
[Volume 3, Page 491]
Records of the Federal Convention
[1:21; Madison, 29 May]
7. Resd. that a National Executive be instituted; to be chosen by the National Legislature for the term of years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the Magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the National laws, it ought to enjoy the Executive rights vested in Congress by the Confederation.
[1:64, 68; Madison, 1 June]
The Committee of the whole proceeded to Resolution 7. "that a national Executive be instituted, to be chosen by the national Legislature------for the term of years &c to be ineligible thereafter, to possess the executive powers of Congress &c"--
Mr. Pinkney was for a vigorous Executive but was afraid the Executive powers of the existing Congress might extend to peace & war &c which would render the Executive a Monarchy, of the worst kind, towit an elective one.
Mr. Wilson moved that the Executive consist of a single person. Mr. C Pinkney seconded the motion so as to read "that a national Ex. to consist of a single person, be instituted--
A considerable pause ensuing and the Chairman asking if he should put the question, Docr. Franklin observed that it was a point of great importance and wished that the gentlemen would deliver their sentiments on it before the question was put.
Mr. Rutlidge animadverted on the shyness of gentlemen on this and other subjects. He said it looked as if they supposed themselves precluded by having frankly disclosed their opinions from afterwards changing them, which he did not take to be at all the case. He said he was for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace. A single man would feel the greatest responsibility and administer the public affairs best.
Mr. Sherman said he considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the despositary of the supreme will of the Society. As they were the best judges of the business which ought to be done by the Executive department, and consequently of the number necessary from time to time for doing it, he wished the number might not be fixed, but that the legislature should be at liberty to appoint one or more as experience might dictate.
Mr. Wilson preferred a single magistrate, as giving most energy dispatch and responsibility to the office. He did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace, etc. The only powers he conceived strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature.
Mr. Gerry favored the policy of annexing a Council to the Executive in order to give weight & inspire confidence.
Mr. Randolph strenuously opposed a unity in the Executive magistracy. He regarded it as the foetus of monarchy. We had he said no motive to be governed by the British Governmt. as our prototype. He did not mean however to throw censure on that Excellent fabric. If we were in a situation to copy it he did not know that he should be opposed to it; but the fixt genius of the people of America required a different form of Government. He could not see why the great requisites for the Executive department, vigor, despatch & responsibility could not be found in three men, as well as in one man. The Executive ought to be independent. It ought therefore in order to support its independence to consist of more than one.
Mr. Wilson said that Unity in the Executive instead of [Volume 3, Page 492] being the fetus of Monarchy would be the best safeguard against tyranny. He repeated that he was not governed by the British Model which was inapplicable to the situation of this Country; the extent of which was so great, and the manners so republican, that nothing but a great confederated Republic would do for it.
Mr. Wilson's motion for a single magistrate was postponed by common consent, the Committee seeming unprepared for any decision on it; and the first part of the clause agreed to, viz. "that a National Executive be instituted."
. . . . .
Mr. Wilson moves that the blank for the term of duration should be filled with three years, observing at the same time that he preferred this short period, on the supposition that a re-eligibility would be provided for.
Mr. Pinkney moves for seven years.
Mr. Sherman was for three years, and agst. the doctrine of rotation as throwing out of office the men best qualified to execute its duties.
Mr. Mason was for seven years at least, and for prohibiting a re-eligibility as the best expedient both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters; and a temptation on the side of the Executive to intrigue with the Legislature for a re-appointment.
Mr. Bedford was strongly opposed to so long a term as seven years. He begged the committee to consider what the situation of the Country would be, in case the first magistrate should be saddled on it for such period and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. An impeachment he said would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. He was for a triennial election, and for an ineligibility after a period of nine years.
On the question for seven years,
Massts. dividd. Cont. no. N. J. ay. Pena. ay. Del. ay. Virga., ay. N. C. no. S. C. no. Georg. no [Ayes--5; noes--4; divided--1.]
There being 5. ays, 4 noes, 1 divd. a question was asked whether a majority had voted in the affirmative? The President decided that it was an affirmative vote.
[1:70; King, 1 June]
This amend. moved by Wilson & secd. by Cs. Pinck.
Rutledge in favor of it. Sherman proposes to leave the number wth. the Legislature--
Wilson--an extive. ought to possess the powers of secresy, vigour & Dispatch--and to be so constituted as to be responsible--Extive. powers are designed for the execution of Laws, and appointing Officers not otherwise to be appointed--If appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. not so where the Executive is numerous.
Mad: agrees wth. Wilson in his difinition of executive powers--executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers shd. be confined and defined--if large we shall have the Evils of elective Monarchies--probably the best plan will be a single Executive of long duration wth. a Council, with liberty to depart from their Opinion at his peril--
Gerry--I am in favr. of a council to advise the Ex--they will be the organs of information of the persons proper for offices--their opinions may be recorded--they may be called to acct. for yr. Opinions. & impeached--if so their Responsibility will be certain, and in Case of misconduct their punishment certain--
Randolph--Danger of Monarchy, or Tyranny, if the ex. consists of three persons they may execute yr. Functions without Danger--if one he can not be impeached until the expiration of his Office, or he will be dependent on the Legislature--such an Unity wd. be agt. the fixed Genius of America &c &c--
We must consider two points of Importance existing in our Country--the extent & manners of the United States--the former seems to require the vigour of Monarchy, the manners are agt. a King and are purely republican--Montesquieu is in favor of confederated Republicks--I am for such a confedn. if we can take for its basis liberty, and can ensure a vigourous execution of the laws.
A single ex. will not so soon introduce a Mony. or Despotism, as a complex one.
The people of Amer. did not oppose the British King but the parliament--the opposition was not agt. an Unity but a corrupt multitude--
Wmson--There is no true difference between a complex executive, formed by a single person with a Council, or by three or more persons as the executive--
The Question of the unity or plurality of the Exve. postponed--and the Come. proceeded to examine the powers--these points being discussed--the Come took into consideration the Duration of the Office of the Ex--
Wilson for 3 Yrs and no exclusion or rotation--
Mad. 7 years and an exclusion for ever after--or during good behavior--
Mason--in Favor of 7 years and an exclusion afterwards--thereby he is made independent of the Legislature, who are proposed as his Electors--if he is capable of reelection by the Leg: the Ex. will be complaisant, & reelect--the Executive will be subservient and court a reelection--on the Quest to fill the Blank for seven yrs.
[1:74; Pierce, 2 June]
Mr. Maddison was of opinion that an Executive formed of one Man would answer the purpose when aided by a Council, who should have the right to advise and record their proceedings, but not to control his authority.
Mr. Gerry was of opinion that a Council ought to be the medium through which the feelings of the people ought to be communicated to the Executive.
Mr. Randolph advanced a variety of arguments opposed to a unity of the Executive, and doubted whether even a [Volume 3, Page 493] Council would be sufficient to check the improper views of an ambitious Man. A unity of the Executive he observed would savor too much of a monarchy.
Mr. Wilson said that in his opinion so far from a unity of the Executive tending to progress towards a monarchy it would be the circumstance to prevent it. A plurality in the Executive of Government would probably produce a tyranny as bad as the thirty Tyrants of Athens, or as the Decemvirs of Rome.
A confederated republic joins the happiest kind of Government with the most certain security to liberty.
Every Government has certain moral and physical qualities engrafted in their very nature,--one operates on the sentiments of men, the other on their fears.
Mr. Dickinson was of opinion that the powers of the Executive ought to be defined before we say in whom the power shall vest.
Mr. Bedford said he was for appointing the Executive Officer for three years, and that he should be eligible for nine years only.
Mr. Maddison observed that to prevent a Man from holding an Office longer than he ought, he may for malpractice be impeached and removed;--he is not for any ineligibility.
[1:88; Madison, 2 June]
The Question for making ye. Executive ineligible after seven years, was next next taken, and agreed to:
Massts. ay. Cont. no. NY--ay Pa. divd. Del. ay. Maryd. ay. Va. ay. N. C. ay. S. C. ay. Geo. no: [Ayes--7; noes--2; divided--1.]
Mr. Williamson 2ded. by Mr. Davie moved to add to the last Clause, the words--"and to be removeable on impeachment & conviction of mal-practice or neglect of duty"--which was agreed to.
Mr. Rutlidge & Mr. C. Pinkney moved that the blank for the no. of persons in the Executive be filled with the words "one person". He supposed the reasons to be so obvious & conclusive in favor of one that no member would oppose the motion.
Mr. Randolph opposed it with great earnestness, declaring that he should not do justice to the Country which sent him if he were silently to suffer the establishmt. of a Unity in the Executive department. He felt an opposition to it which he believed he should continue to feel as long as he lived. He urged 1. that the permanent temper of the people was adverse to the very semblance of Monarchy. 2. that a unity was unnecessary a plurality being equally competent to all the objects of the department. 3. that the necessary confidence would never be reposed in a single Magistrate. 4. that the appointments would generally be in favor of some inhabitant near the center of the Community, and consequently the remote parts would not be on an equal footing. He was in favor of three members of the Executive to be drawn from different portions of the Country.
Mr. Butler contended strongly for a single magistrate as most likely to answer the purpose of the remote parts. If one man should be appointed he would be responsible to the whole, and would be impartial to its interests. If three or more should be taken from as many districts, there would be a constant struggle for local advantages. In Military matters this would be particularly mischievous. He said his opinion on this point had been formed under the opportunity he had had of seeing the manner in which a plurality of military heads distracted Holland when threatened with invasion by the imperial troops. One man was for directing the force to the defence of this part, another to that part of the Country, just as he happened to be swayed by prejudice or interest.
[1:90; Yates, 2 June]
Mr. Butler moved to fill the number of which the executive should consist.
Mr. Randolph.--The sentiments of the people ought to be consulted--they will not hear of the semblance of monarchy--He preferred three divisions of the states, and an executive to be taken from each. If a single executive, those remote from him would be neglected--local views would be attributed to him, frequently well founded, often without reason. This would excite disaffection. He was therefore for an executive of three.
Mr. Butler.--Delays, divisions and dissentions arise from an executive consisting of many. Instanced Holland's distracted state, occasioned by her many counsellors. Further consideration postponed.
[1:90; King, 2 June]
A vigs. executive with checks &c can not be republican, it is peculiar to monarchy--
The monarchl. Ex is vigour--not alone from power but attachment or respect--
The Repub. plan may have an equivalent to the attachmt. that is the 3d Br. of the Legis:
We cannot have a limited monarchy instanter--our situation will not allow it--Repubs. are for a while industrious but finally destroy ymselves--they were badly constituted--I dread a Consolidation of the States
[1:96; Madison, 4 June]
The Question was resumed on motion of Mr. Pinkney 2ded. by Wilson "shall the blank for the number of the Executive be filled with "a single person"?
Mr. Wilson was in favor of the motion. It had been opposed by the gentleman from Virga. (Mr. Randolph) but the arguments used had not convinced him. He observed that the objections of Mr. R. were levelled not so much agst. the measure itself, as agst. its unpopularity. If he could suppose that it would occasion a rejection of the plan of which it should form a part, though the part was an important one, yet he would give it up rather than lose the whole. On examination he could see no evidence of the alledged antipathy of the people. On the contrary he was persuaded that it does not exist. All know that a single magistrate is not a King. one fact has great weight with him. All the 13 States tho' agreeing in scarce any other instance, agree in placing a single magistrate at the head [Volume 3, Page 494] of the Government. The idea of three heads has taken place in none. The degree of power is indeed different: but there are no co-ordinate heads. In addition to his former reasons for preferring a Unity, he would mention another. The tranquility not less than the vigor of the Govt, he thought would be favored by it. Among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro' the other branches of Govt., thro' the States, and at length thro' the people at large. If the members were to be unequal in power the principle of the opposition to the Unity was given up. If equal, the making them an odd number would not be a remedy. In Courts of Justice there are two sides only to a question. In the Legislative & Executive departmts. questions have commonly many sides. Each member therefore might espouse a separate one & no two agree.
Mr. Sherman. This matter is of great importance and ought to be well considered before it is determined. Mr. Wilson he said had observed that in each State a single magistrate was placed at the head of the Govt. It was so he admitted, and properly so, and he wished the same policy to prevail in the federal Govt. But then it should be also remarked that in a all the States there was a Council of advice, without which the first magistrate could not act. A Council he thought necessary to make the establishment acceptable to the people. Even in G. B. the King has a council; and though he appoints it himself, its advice has its weight with him, and attracts the Confidence of the people.
Mr. Williamson asks Mr. Wilson whether he means to annex a Council
Mr. Wilson means to have no Council, which oftener serves to cover, than prevent malpractices.
Mr. Gerry. was at a loss to discover the policy of three members for the Executive. It wd. be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, an army, or a navy. It would be a general with three heads.
On the question for a single Executive it was agreed to Massts. ay. Cont. ay. N.Y. no. Pena. ay. Del. no. Maryd. no. Virg. ay. (Mr. R & Mr. Blair no--Docr. Mc.Cg. Mr.M. & Gen. W. ay. Col. Mason being no, but not in house, Mr. Wythe ay but gone home). N. C. ay. S. C. ay. Georga. ay. [Ayes--7; noes--3.]
[1:109; Pierce, 4 June]
Mr. Wilson said that all the Constitutions of America from New Hampshire to Georgia have their Executive in a single Person. A single Person will produce vigor and activity. Suppose the Executive to be in the hands of a number they will probably be divided in opinion.
[4:17; Mason, 4 June]
[Mr. Mason:] . . . by placing the Executive Power in three Persons, instead of one, we shall not only increase the Number of the Council of Revision (which I have endeavoured to show will want increasing), but by giving to each of the three a Vote in the Council of Revision, we shall increase the Strength of the Executive, in that particular Circumstance, in which it will most want Strength--in the Power of defending itself against the Encroachments of the Legislature.--These, I must acknowledge, are with me, weighty Considerations for vesting the Executive rather in three than in one Person.
The chief Advantages which have been urged in favour of Unity in the Executive, are the Secrecy, the Dispatch, the Vigour and Energy which the Government will derive from it; especially in time of war.--That these are great Advantages, I shall most readily allow--They have been strongly insisted on by all monarchical Writers--they have been acknowledged by the ablest and most candid Defenders of Republican Government; and it can not be denyed that a Monarchy possesses them in a much greater Degree than a Republic.--Yet perhaps a little Reflection may incline us to doubt whether these Advantages are not greater in Theory than in Practice--or lead us to enquire whether there is not some pervading Principle in Republican Governments which sets at Naught, and tramples upon this boasted Superiority--as hath been experienced, to their cost, by most Monarchys, which have been imprudent enough to invade or attack their republican Neighbors. This invincible Principle is to be found in the Love the Affection the Attachment of the Citizens to their Laws, to their Freedom, and to their Country--Every Husbandman will be quickly converted into a Soldier, when he knows and feels that he is to fight not in Defence of the Rights of a particular Family, or a Prince; but for his own. This is the true Construction of the pro Aris & focis which has, in all Ages, performed such Wonders--It was this which, in ancient times, enabled the little Cluster of Grecian Republics to resist, and almost constantly to defeat the Persian Monarch--It was this which supported the States of Holland against a Body of veteran Troops thro' a thirty Years War with Spain, then the greatest Monarchy in Europe, and finally rendered them victorious.--It is this which preserves the Freedom and Independence of the Swiss Cantons in the midst of the most powerful Nations --And who that reflects seriously upon the Situation of America, in the Beginning of the late War--without Arms--without Soldiers--without Trade, Money, or Credit--in a Manner destitute of all Resources, but must ascribe our Success to this pervading, all-powerful Principle?
We have not yet been able to define the Powers of the Executive; and however moderately some Gentlemen may talk or think upon the Subject, I believe there is a general Tendency to a strong Executive and I am inclined to think a strong Executive necessary--If strong and extensive Powers are vested in the Executive, and that Executive consists only of one Person; the Government will of course degenerate (for I will call it degeneracy) into a Monarchy--a Government so contrary to the Genius of the People that they will reject even the Appearance of it--I consider the federal Government as in some Measure dissolved by the Meeting of this Convention--Are there no Dangers to be apprehended from proscrastinating the time between the breaking up of this Assembly and the adoption of a new System of Government--I dread the [Volume 3, Page 495] Interval--If it should not be brought to an Issue in the Course of the first Year the Consequences may be fatal--Has not the different Parts of this extensive Government, the several States of which it is composed a Right to expect an equal Participation in the Executive, as the best means of securing an equal Attention to their Interests? Should an Insurrection, a Rebellion or Invasion happen in New Hampshire when the single supreme Magistrate is a Citizen of Georgia, would not the People of New Hampshire naturally ascribe any Delay in defending them to such a Circumstance and so vice versa--If the Executive is vested in three Persons, one chosen from the northern, one from the middle, and one from the Southern States, will it not contribute to quiet the Minds of the People, and convince them that there will be proper attention paid to their respective Concerns? Will not three Men so chosen bring with them, into Office, a more perfect and extensive Knowledge of the real Interests of this great Union? Will not such a mode of Appointment be the most effectual means of preventing Cabals and Intrigues between the Legislature and the Candidates for this Office, especially with those Candidates who from their local Situation, near the Seat of the federal Government, will have the greatest Temptations and the greatest Opportunitys? Will it not be the most effectual means of checking and counteracting the aspiring Views of dangerous and ambitious Men, and consequently the best Security for the Stability and Duration of our Government upon the invaluable Principles of Liberty? These, Sir, are some of my motives for preferring an Executive consisting of three Persons rather than of one.
[2:33; Madison, 17 July]
"to be ineligible a second time"--Mr. Houston moved to strike out this clause.
Mr. Sherman 2ds. the motion.
Mr. Govr. Morris espoused the motion. The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines.
On the question for striking out as moved by Mr. Houston, it passed in the affirmative.
Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. no. N. C. no. S. C. no. Geo. ay. [Ayes--6; noes--4.]
"For the term of 7 years" resumed
Mr. Broom was for a shorter term since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a 2d. time, he should have preferred a longer term.
Docr. McClurg moved to strike out 7 years, and insert "during good behavior". By striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent for ever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department.
Mr. Govr. Morris 2ded. the motion. He expressed great pleasure in hearing it. This was the way to get a good Government. His fear that so valuable an ingredient would not be attained had led him to take the part he had done. He was indifferent how the Executive should be chosen, provided he held his place by this tenure.
Mr. Broome highly approved the motion. It obviated all his difficulties.
Mr. Sherman considered such a tenure as by no means safe or admissible. As the Executive Magistrate is now re-eligible, he will be on good behavior as far as will be necessary. If he behaves well he will be continued; if otherwise, displaced on a succeeding election.
Mr. Madison. If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislure, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well the maker of the laws. In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive & Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded & applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances--1. the collective interest & security were much more in the power belonging to the Executive than to the Judiciary department. 2. in the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter. But if the 2d. consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Execut: than the Judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a Union between the Executive & Legisl: powers, than between the Judiciary & Legislative powers. He conceived it to be absolutely necessary to a well constituted Republic that the two first shd. be kept distinct & independent of each other. Whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of instituting a tribunal for impeachmts. as certain & as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing & discussion, until a less objectionable expedient should be applied for guarding agst. a dangerous union of the Legislative & Executive departments.
Col. Mason. This motion was made some time ago, & negatived by a very large majority. He trusted that it wd. be again negatived. It wd. be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender holding his office by such a tenure to submit to a trial. He considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy. [Volume 3, Page 496] If the motion should finally succeed, he might himself live to see such a Revolution. If he did not it was probable his children or grandchildren would. He trusted there were few men in that House who wished for it. No state he was sure had so far revolted from Republican principles as to have the least bias in its favor.
Mr. Madison, was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Govt. therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view.
Mr. Govr. Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchial Govt. was to establish such a Repub. Govt. as wd. make the people happy and prevent a desire of change.
Docr. McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to Republican Govt. as not to be sensible of the tyrannies that had been & may be exercised under that form. It was an essential object with him to make the Executive independent of the Legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behavior.
On the question for inserting "during good behavior" in place of 7 years (with a re-eligibility) it passed in the negative.
Mas. no. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes--4; noes--6.]
On the motion "to strike out seven years" it passed in the negative.
Mas. ay. Ct. no. N. J. no. Pa. ay. Del. ay. Md. no. Va. no. N. C. ay. S. C. no. Geo. no. [Ayes--4; noes--6.]
It was now unanimously agreed that the vote which had struck out the words "to be ineligible a second time" should be reconsidered tomorrow.
[2:52; Madison, 19 July]
Mr. Martin moved to reinstate the words "to be ineligible a 2d. time".
Mr. 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, agst. 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 2d. branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1st. 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 1st. 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 establishmt. 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 [Volume 3, Page 497] 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 1st. 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 the 1st. 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 reappointmt. 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 agst 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.
Mr. Randolph urged the motion of Mr. L. Martin for restoring the words making the Executive ineligible a 2d. 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 1st. and appointed by the 2d. 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 reappointment 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 tha[n] the plan suggested by Mr. Govr. Morris.
Mr. King. did not like the ineligibility. He thought there was great force in the remark of Mr. Sherman, that he who has proved himself to be 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.
Mr. Patterson's ideas nearly coincided he said with those of Mr. 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.
Mr. 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 2d. time: he preceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people.
Mr. Madison If it be a fundamental principle of free Govt. 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 shd. 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 1st. 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 [Volume 3, Page 498] & 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 the fewest objections.
Mr. 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 agst. 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 1st. branch: The legislatures of the States the 2nd. branch of the National Legislature, and the Executives of the States, the National Executive--This he thought would form a strong attachnt. 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 Govr Bowdoin in Massts & President Sullivan in N. Hamshire.
[2:102; Madison, 24 July]
Mr. Gerry. That the Executive shd. 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.
Mr. 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.
Mr. L. Martin, suspending his motion as to the ineligibility, moved "that the appointment. of the Executive shall continue for Eleven years.
Mr. Gerry suggested fifteen years.
Mr. King twenty years. This is the medium life of princes.
Mr. Davie Eight years
Mr. 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 has 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 (Ld. 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 wd. move that the present question be postponed till tomorrow.
Mr. Broom seconded the motion to postpone.
Mr. 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.
Mr. Wilson. As the great difficulty seems to spring from the mode of election, he wd. 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 Natl 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.
Mr. Govr. 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 has been opposed to the impeachment, but was now convinced that impeachments must be provided for, if the appt. was to be of any duration. No man wd. 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 can not 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 practiced 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 party will always covet his seat, will perplex his administration, [Volume 3, Page 499] 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 (Ld. 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 Execuve 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 2d. time had been devised. This was as much as to say we shd. give him the benefit of experience, and then deprive ourselves of the use of it. But make him ineligible a 2d. 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 Commander 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 shd. himself be afraid to trust it. He was not prepared to decide on Mr. Wilson's mode of election just hinted by him. He thought it deserved consideration. It would be better that chance sd. decide than intrigue.
On A question to postpone the consideration of the Resolution on the subject of the Executive
N. H. no. Mas. no. Ct. ay. N. J. no. Pa. ay. Del. divd. Md. ay. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes--4; noes--6; divided--1.]
Mr. Wilson then moved "that the Executive be chosen every years by Electors to be taken by lot from the Natl Legislature who shall proceed immediately to the choice of the Executive and not separate until it be made"
Mr. Carrol 2ds. the motion
Mr. 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.
Mr. King--The lot might fall on majority from the same State which wd. ensure the election of a man from that State. We ought to be governed by reason, not by chance. As no body seemed to be satisfied, he wished the matter to be postponed
Mr. 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.
Mr. Govr. Morris observed that the chances were almost infinite agst. 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.
Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.
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