Article 2, Section 2, Clause 1

Document 1

Records of the Federal Convention

[1:66; Madison, 1 June]

Mr. Madison thought it would be proper, before a choice shd. be made between a unity and a plurality in the Executive, to fix the extent of the Executive authority; that as certain powers were in their nature Executive, and must be given to that departmt. whether administered by one or more persons, a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer. He accordingly moved that so much of the clause before the Committee as related to the powers of the Executive shd. be struck out & that after the words "that a national Executive ought to be instituted" there be inserted the words following viz, "with power to carry into effect. the national laws. to appoint to offices in cases not otherwise provided for, and to execute such [Volume 4, Page 2] other powers not Legislative nor Judiciary in their nature as may from time to time be delegated by the national Legislature". The words "not legislative nor judiciary in their nature" were added to the proposed amendment in consequence of a suggestion by Genl Pinkney that improper powers might otherwise be delegated,

Mr. Wilson seconded this motion

Mr. Pinkney moved to amend the amendment by striking out the last member of it; viz. "and to execute such other powers not Legislative nor Judiciary in their nature as may from time to time be delegated." He said they were unnecessary, the object of them being included in the "power to carry into effect the national laws".

Mr. Randolph seconded the motion.

Mr. Madison did not know that the words were absolutely necessary, or even the preceding words. "to appoint to offices" &c. the whole being perhaps included in the first member of the proposition. He did not however see any inconveniency in retaining them, and cases might happen in which they might serve to prevent doubts and misconstructions.

In consequence of the motion of Mr. Pinkney, the question on Mr. Madison's motion was divided; and the words objected to by Mr. Pinkney struck out; by the votes of Connecticut. N. Y. N. J. Pena. Del. N. C. & Geo: agst. Mass. Virga. & S. Carolina the preceding part of the motion being first agreed to: Connecticut divided, all the other States in the affirmative.

[1:113; Mason, 4 June]

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.

[4:15; Mason, 4 June]

It is not yet determined how the Executive is to be regulated whether it is to act solely from its own Judgment, or with the Advice of others whether there is, or is not to be a Council annexed to it; and if a Council, how far their Advice shall operate in controuling the Judgment of the supreme magistracy--If there is no Council of State, and the executive power be vested in a single Person; what are the Provisions for its proper Operation, upon casual Disability by sickness, or otherwise.--These are Subjects which must come under our Consideration; and perhaps some of the most important Objections would be obviated by placing the executive Power in the hands of three, instead of one Person.

There is also to be a Council of Revision; invested, in a great Measure, with a Power of Negative upon the Laws; and an Idea has been suggested, either within or without doors, that this Council should be formed of the principal Officers of the State,--I presume of the members of the Treasury Board, the Board of War, the Navy Board, and the Department for foreign Affairs: it is unnecessary, if not improper, to examine this part of the Subject now, but I will venture to hazard an Opinion, when it comes to be thoroughly investigated, that we can hardly find worse Materials out of which to create a Council of Revision; or more improper or unsafe Hands, in which to place the Power of a Negative upon our Laws.--It is proposed, I think, Sir, in the Plan upon your Table, that this Council of Revision shall be formed out of the Members of the Judiciary Departments joined with the Executive; and I am inclined to think, when the Subject shall be taken up, it may be demonstrated, that this will be the wisest and safest mode of constituting this important Council of Revision.--But the foederal inferior Courts of Justice must, I presume, be fixed in the several respective States, and consequently most of them at a great Distance from the Seat of the foederal Government: the almost continual Operation of the Council of Revision upon the Acts of the national Parliament, and upon their Negative of the Acts of the several State legislatures, will require that this Council should be easily and speedily convened; and consequently, that only the Judges of the Supreme foederal Court, fixed near the Seat of Government, can be Members of it; their Number will be small: 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.

[1:244; Madison, 15 June]

4. Resd. . . . that the Executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, & to direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General, or in other capacity.

[1:292; Madison, 18 June]

IV. The supreme Executive authority of the United States to be vested in a Governour to be elected to serve during good behaviour--the election to be made by Electors chosen by the people in the Election Districts aforesaid-- The authorities & functions of the Executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed, to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the departments of Finance, War and Foreign Affairs; to have the nomination of all other [Volume 4, Page 3] officers (Ambassadors to foreign Nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except Treason; which he shall not pardon without the approbation of the Senate.

[2:135, 145, 146, 157, 171; Committee of Detail]

--In the Presidt. the executive Authority of the U.S. shall be vested.--His Powers and Duties--He shall have a Right to advise with the Heads of the different Departments at his Council

. . . . .

5. His powers shall be

1. to carry into execution the national laws.

2. to (command and superintend the militia,) to be Commander in Chief of the Land & Naval Forces of the Union & of the Militia of the sevl. states

(3. to direct their discipline)

(4. to direct the executives of the states to call them or any part for the support of the national government.)1

. . . . .

The power of pardoning vested in the Executive (which) his pardon shall not however, be pleadable to an Impeachmt.2

. . . . .

That the Executive direct all military Operations

. . . the Executive shall be authorised to enforce and compel Obedience by calling forth the Powers of the United States. . . .

There shall be a President, in which the Ex. Authority of the U.S. shall be vested. It shall be his Duty to inform the Legislature of the Condition of U. S. so far as may respect his Department--to recommend Matters to their Consideration--to correspond with the Executives of the several States--to attend to the Execution of the Laws of the U. S.--to transact Affairs with the Officers of Government, civil and military--to expedite all such Measures as may be resolved on by the Legislature--to inspect the Departments of foreign Affairs--War--Treasury--Admiralty--to reside where the Legislature shall sit--to commission all Officers, and keep the Great Seal of U. S.--He shall, by Virtue of his Office, be Commander in chief of the Land Forces of U. S. and Admiral of their Navy--He shall have Power to convene the Legislature on extraordinary Occasions--to prorogue them, provided such Prorogation shall not exceed Days in the space of any

--He may suspend Officers, civil and military

. . . . .

He shall have power to grant Reprieves and Pardons; but his Pardon shall not be pleadable in Bar of an Impeachment. He shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the Several States.

[2:328; Madison, 18 Aug.]

Mr. Elseworth observed that a Council had not yet been provided for the President. He conceived there ought to be one. His proposition was that it should be composed of the President of the Senate-- the Chief-Justice, and the Ministers as they might be estabd. for the departments of foreign & domestic affairs, war finance, and marine, who should advise but not conclude the President.

Mr Pinkney wished the proposition to lie over, as notice had been given for a like purpose by Mr. Govr. Morris who was not then on the floor. His own idea was that the President shd. be authorized to call for advice or not as he might chuse. Give him an able Council and it will thwart him; a weak one and he will shelter himself under their sanction.

Mr Gerry was agst. letting the heads of the departments, particularly of finance have any thing to do in business connected with legislation. He mentioned the Chief Justice also as particularly exceptionable. These men will also be so taken up with other matters as to neglect their own proper duties.

Mr. Dickenson urged that the great appointments should be made by the Legislature, in which case they might properly be consulted by the Executive--but not if made by the Executive himself--This subject by general Consent lay over; & the House proceeded to the clause "To raise armies".

[2:342; Madison, 20 Aug.]

Mr. Govr. Morris 2ded. by Mr. Pinkney submitted the following propositions which were in like manner referred to the Committee of Detail.

"To assist the President in conducting the Public affairs there shall be a Council of State composed of the following officers--1. The Chief Justice of the Supreme Court, who shall from time to time recommend such alterations of and additions to the laws of the U. S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union: He shall be President of the Council in the absence of the President

. . . . .

The President may from time to time submit any matter to the discussion of the Council of State, and he may require the written opinions of any one or more of the members: But he shall in all cases exercise his own judgment, and either Conform to such opinions or not as he may think proper; and every officer abovementioned shall be responsible for his opinion on the affairs relating to his particular Department.

[2:367; Journal, 22 Aug.]

after the 2nd section of the 10th article insert the following as a 3rd section.

"The President of the United States shall have a Privy-Council which shall consist of the President of the Senate, the Speaker of the House of representatives, the Chief-Justice of the Supreme-Court, and the principal Officer in the respective departments of foreign affairs, domestic-affairs, War, Marine, and Finance, as such departments of office shall from time to time be established--whose duty it shall be to advise him in matters respecting the execution of his Office, which he shall think proper to lay before [Volume 4, Page 4] them: But their advice shall not conclude him, nor affect his responsibility for the measures which he shall adopt"

[2:411; Journal, 25 Aug.]

It was moved and seconded to insert the words "except in cases of impeachment" after the word "pardons" 2 sect. 10 article

which passed in the affirmative

On the question to agree to the following clause "but his pardon shall not be pleadable in bar"

it passed in the negative [Ayes--4; noes--6.]

[2:419; Madison, 25 Aug.]

Mr. Sherman moved to amend the "power to grant reprieves & pardon" so as to read "to grant reprieves until the ensuing session of the Senate, and pardons with consent of the Senate."

On the question

N--H-- no. Mas. no. Ct. ay-- Pa no Md. no. Va. no. N. C. no. S. C. no. Geo. no. [Ayes--1; noes--8.]

"except in cases of impeachment" inserted nem: con: after "pardon"

On the question to agree to--"but his pardon shall not be pleadable in bar"

N.H. ay--Mas--no. Ct. no-- Pa. no-- Del. no. Md. ay. Va. no. N-- C-- ay-- S. C. ay-- Geo. no. [Ayes--4; noes--6.]

[2:426; Madison, 27 Aug.]

Mr. Govr. Morris. The question of a Council was considered in the Committee, where it was judged that the Presidt. by persuading his Council--to concur in his wrong measures, would acquire their protection for them--

Mr. Wilson approved of a Council, in preference to making the Senate a party to appointmts.

Mr. Dickinson was for a Council. It wd. be a singular thing if the measures of the Executive were not to undergo some previous discussion before the President

Mr Madison was in favor of the instruction to the Committee proposed by Col. Mason.

The motion of Mr. Mason was negatived. Maryd. ay. S. C. ay. Geo. ay--N. H. no. Mas. no. Ct. no. N. J. no Pa. no. Del. no. Va. no. N C no. [Ayes--3; noes--8.]

On the question, "authorizing the President to call for the opinions of the Heads of Departments, in writing": it passed in the affirmative, N. H. only being no. The clause was then unanimously agreed to.

[2:564; Madison, 10 Sept.]

Mr. Randolph moved to refer to the Committee also a motion relating to pardons in cases of Treason--which was agreed to nem: con:

[2:575, 599; Committee of Style]

He shall have power to grant reprieves and pardons except in cases of impeachment. He shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual service of the United States; and may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.

. . . . .

Art X. sect. 2. being resumed,

Mr. L. Martin moved to insert the words "after conviction" after the words "reprieves and pardons"

Mr. Wilson objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen.--Mr. L. Martin withdrew his motion.

Mr. Sherman moved to amend the clause giving the Executive the command of the Militia, so as to read "and of the Militia of the several States, when called into the actual service of the U-- S--" and on the Question

N--H. ay. Mas. abst. Ct. ay. N--J. abst Pa ay. Del. no. Md ay. Va. ay. N-- C. abst. S. C-- no. Geo-- ay, [Ayes--6; noes--2; absent--3.]

[2:499; Madison, 4 Sept.]

(8) After the words "into the service of the U S." in sect. 2. art: 10. add "and may require the opinion in writing of the principal Officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices."

[2:533; Journal, 7 Sept.]

It was moved and seconded to postpone the consideration of the 4 sect. of the report in order to take up the following.

That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State, for the President of the United States, to consist of six Members, two of which from the Eastern, two from the middle, and two from the southern States with a rotation and duration of office similar to that of the Senate; such Council to be appointed by the Legislature or by the Senate.

On the question to postpone

it passed in the negative [Ayes--3; noes--8.]

[To agree to the last question Ayes--11; noes--0.]

[2:541; Madison, 7 Sept.]

"and may require the opinion in writing of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices." being before the House

Col: Mason said that in rejecting a Council to the President we were about to try an experiment on which the most despotic Governments had never ventured--The Grand Signor himself had his Divan. He moved to postpone the consideration of the clause in order to take up the following

"That it be an instruction to the Committee of the States to prepare a clause or clauses for establishing an Executive Council, as a Council of State for the President of the U. States, to consist of six members, two of which from the Eastern, two from the middle, and two from the Southern [Volume 4, Page 5] States, with a Rotation and duration of office similar to those of the Senate; such Council to be appointed by the Legislature or by the Senate".

Doctor Franklin 2ded. the motion. We seemed he said too much to fear cabals in appointments by a number, and to have too much confidence in those of single persons. Experience shewed that caprice, the intrigues of favorites & mistresses, &c were nevertheless the means most prevalent in monarchies. among instances of abuse in such modes of appointment, he mentioned the many bad Governors appointed in G. B. for the Colonies. He thought a Council would not only be a check on a bad President but be a relief to a good one.

Sect. 2. The president shall be commander in chief of the army and navy of the United States, and of the militia of the several States: he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, when called into the actual service of the United States, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.

[2:626; Madison, 15 Sept.]

Art. II. sect. 2. "he shall have power to grant reprieves and pardons for offences against the U.S. &c"

Mr Randolph moved to "except cases of treason". The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

Col: Mason supported the motion.

Mr Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.

Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

Mr. King thought it would be inconsistent with the Constitutional separation of the Executive & Legislative powers to let the prerogative be exercised by the latter--A Legislative body is utterly unfit for the purpose. They are governed too much by the passions of the moment. In Massachusetts, one assembly would have hung all the insurgents in that State: the next was equally disposed to pardon them all. He suggested the expedient of requiring the concurrence of the Senate in Acts of Pardon.

Mr. Madison admitted the force of objections to the Legislature, but the pardon of treasons was so peculiarly improper for the President that he should acquiesce in the transfer of it to the former, rather than leave it altogether in the hands of the latter. He would prefer to either an association of the Senate as a Council of advice, with the President.

Mr Randolph could not admit the Senate into a share of the Power. the great danger to liberty lay in a combination between the President & that body--

Col: Mason. The Senate has already too much power--There can be no danger of too much lenity in legislative pardons, as the Senate must con concur, & the President moreover can require 2/3 of both Houses

On the motion of Mr. Randolph

N. H.no--Mas. no--Ct. divd. N-- J-- no. Pa. no--Del. no. Md no--Va ay--N--C. no--S. C. no. Geo--ay. [Ayes--2; noes--8; divided--1.]

[2:638; Mason, 15 Sept.]

The President of the United States has no Constitutional Council, a thing unknown in any safe and regular government. He will therefore be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate--or a Council of State will grow out of the principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council in a free country; for they may be induced to join in any dangerous or oppressive measures, to shelter themselves, and prevent an inquiry into their own misconduct in office. Whereas, had a constitutional council been formed (as was proposed) of six members, viz.: two from the Eastern, two from the Middle, and two from the Southern States, to be appointed by vote of the States in the House of Representatives, with the same duration and rotation of office as the Senate, the executive would always have had safe and proper information and advice; the president of such a council might have acted as Vice-President of the United States pro tempore, upon any vacancy or disability of the chief magistrate; and long continued sessions of the Senate, would in a great measure have been prevented. From this fatal defect has arisen the improper power of the Senate in the appointment of public officers, and the alarming dependence and connection between that branch of the legislature and the supreme Executive.

Hence also sprung that unnecessary and dangerous officer the Vice-President, who for want of other employment is made president of the Senate, thereby dangerously blending the executive and legislative powers, besides always giving to some one of the States an unnecessary and unjust preeminence over the others.

The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.

COMMANDER IN CHIEF

1. [Editors' note.--Words in parentheses were crossed out in the original.]

2. [Editors' note.--Words in parentheses were crossed out in the original.]