The almost certain election of the vice-president was secured by declaring the candidate having the most votes to be duly elected. In the extremely improbable case, that two persons should lead all the candidates with an exactly equal number of votes, the election was to devolve on the senate. "Such an officer as vice-president," said Williamson on the seventh, "is not wanted."* To make an excuse for his existence, the convention decreed that he should be president of the senate. "That," said Mason, "is an encroachment on the senate's rights; and, moreover, it mixes too much the legislative and the executive." It was seen that the vice-president brings to the chair of the senate the dignity of one of the two highest officers in the land chosen by the whole country; and yet that he can have no real influence in a body upon which he is imposed by an extraneous vote. That the vice-president should, in the event of a vacancy, act as president, prevents the need of a new election before the end of the regular term; but an immediate appeal to the people might give a later and truer expression of its wishes. While the method to be adopted for the election of the president still engaged the untiring efforts of the convention, it proceeded in the ascertainment of his powers. His style was lowed to take from the holograph of Jefferson a copy of his paper on this subject, written by him for the use of W. C. Nicholas when senator from Virginia in congress in 1800. The question as voted upon in congress in 1800 was decided not by any bearing on the selection of Jefferson or Burr for the presidency, for the party opposed to Jefferson had a majority in each branch, but on the unwillingness of the senate to give to the house of representatives superior weight in the decision of elections. Jefferson, iv., 322. The vice-president was never charged with the power to count the votes. The person who counted the first votes for president and vicepresident was no vice-president, but a senator elected by the senate as its presiding officer for that act under a special authority conferred by the constitution for that one occasion when the constitution was to be set in motion. On any pretence of a right in the vice-president to count the votes, compare the words spoken in the senate by Senator Conkling, 23 and 24 January 1877, and Senator Edmunds, 20 November 1877. The laws of historical criticism require the historian to study the words of the state constitutions from which the article in the United States constitution is taken, and the practice of the state legislatures of that day under the original articles in the state constitutions; and these must decide on the right interpretation of the language employed in the constitution of the United States. * Gilpin, 1517; Elliot, 522. declared to be "the President of the United States of America;" the clause that his title should be "His Excellency" was still suffered to linger in the draft. He was to be the minister to carry out the will of the legislature, and see that the laws are executed. It was made his duty to give information of the state of the union; and to recommend necessary and expedient measures. He could not prorogue the two branches of the legislature nor either of them; nor appeal to the people by dissolving them. They alone had the power to adjourn; but on extraordinary occasions to him belonged the prerogative to convene them, or to convene the senate alone. Wilson was most apprehensive that the legislature, by swallowing up all the other powers, would lead to a dissolution of the government, no adequate self-defensive power having been granted either to the executive or judicial department.* To strengthen the president and raise a strong barrier against rash legislation, Gouverneur Morris would have granted the president a qualified veto on the repeal of a law, an absolute veto on every act of legislation.+ In June the convention had agreed that the veto of the president on an act of congress could be overruled by two thirds of each house; on the fifteenth of August, at the instance of Williamson, it was agreed that the veto of the president could be overruled only by three fourths of each branch of congress, and on the next day the same rule was applied to every order, resolution, or vote to which the concurrence of the two houses might be necessary, except it were a question of adjournment.‡ Sherman, on the twenty-fifth of August, had proposed that pardons should require the consent of the senate; but no state except his own was willing thus to restrict the clemency of the president.# All agreed that he should be commander-in-chief of the army and the navy; but, on the twenty-seventh of August, at Sherman's instance, he was to command the militia only when it should be called into the actual service of the United States.] The men who made the constitution had taken to heart the *Gilpin, 1336, 1337; Elliot, 430. Gilpin, 1334; Elliot, 429. Gilpin, 1337, 1338; Elliot, 431. #Gilpin, 1433; Elliot, 480. lesson that the three great powers—legislative, judicial, and executive-should be lodged in different hands. "Executing the laws and appointing officers not appertaining to and appointed by the legislature," Wilson had said, so early as the first of June," are strictly executive powers." * Yet it seemed needful to keep watch over the president, and Gerry † and Sherman had favored the appointment of an executive council.+ Charles Pinckney wished the president to consult the heads of the principal departments.# "A superfluous proposition," said Hamilton, "for the president will at any rate have that right." Mercer, on the fourteenth of August, suggested "a council composed of members of both houses of the legislature to stand between the aristocracy and the executive." But the thought did not take root. The convention was anxious to reconcile a discreet watchfulness over the executive with his independence. In August Ellsworth had recommended a council to be composed of the president of the senate, the chief justice, and the ministers, or secretaries as Gouverneur Morris named them, of the foreign, the interior, war, treasury, and navy departments," to advise, but not conclude the president." A Gerry pronounced the nomination of the chief justice particularly exceptionable. ◊ Dickinson urged that the great appointments of the heads of departments should be made by the legislature, in which case they might properly be consulted by the executive. The elaborate plan of a council of state which Gouverneur Morris proposed on the twentieth differed from that of Ellsworth mainly in its exclusion of the president of the senate. The persistent convention next consulted its committee of detail, which on the twenty-second reported: that "the privy council of the president of the United States 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 each of five departments as they shall from time to time be established; their duty shall be to advise him in + Ibid. * Gilpin, 763; Elliot, 141. # Gilpin, 1318; Elliot, 421. A Gilpin, 1358, 1359; Elliot, 442. matters which he shall lay before them; but their advice shall not conclude him, nor affect his responsibility." The report did not satisfy the convention, which, still hopeful and persevering, referred the subject to the grand committee of the eleven states. The report of the committee, made on the fourth of September, did no more than permit the executive to “require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of his office." "In rejecting a council to the president," such were the final words of Mason, "we are about to try an experiment on which the most despotic government has never ventured; the Grand Seignior himself has his Divan ;" and he proposed an executive council to be appointed by the legislature or by the senate, and to consist of two members from the eastern, two from the middle, and two from the southern states; with a rotation and duration of office similar to those of the senate. He was seconded by Franklin, who "thought a council would be a check on a bad president, a relief to a good one." # Wilson "approved of a council, in preference to making the senate a party to appointments." So did Dickinson and Madison; but the motion gained only three states; I and then by a unanimous vote the president was authorized to take written opinions of the heads of departments, who thus became his constitutional advisers. The failure to establish an efficient council led the convention most reluctantly to vest the senate with some control over acts of the executive. On the seventh it was agreed "that the president shall have the power to make treaties by and with the advice and consent of the senate."◊ "And of the house of representatives," Wilson would have added; saying: "As treaties are to have the operation of laws, they ought to have the sanction of laws." But Sherman represented that the necessity of secrecy forbade a reference to both houses, and every state assented except Pennsylvania. * Gilpin, 1398, 1399; Elliot, 462. Gilpin, 1523; Elliot, 525. # Ibid. Gilpin, 1524; Elliot, 526. ▲ Ibid. ◊ Gilpin, 1519, Elliot, 523. Gilpin, 1519; Elliot, 523. It has already been related that to diminish the temptation to war, the power to declare it was confided to the legislature. In treaties of peace, Madison, fearing in a president a passion for continuing war, proposed to dispense with his concurrence. "The means of carrying on the war," said Gorham, "will not be in the hands of the president, but of the legislature." "No peace," insisted Gouverneur Morris, "ought to be made without the concurrence of the president, who is the general guardian of the nation." And Maryland, South Carolina, and Georgia alone voted for the amendment.* On the seventh, the advice and consent of the senate was, by a unanimous vote, required for the appointment of ambassadors, other public ministers, consuls, and judges of the supreme court;† and for all other officers of the United States by nine states against Pennsylvania and South Carolina. + But eight days later the legislature was authorized to vest the appointment of inferior officers in the president alone, in the courts of law, or in the heads of departments.# All agreed in giving the president power to fill up, temporarily, vacancies that might happen during the recess of the senate. Had the consent of the senate been made necessary to displace as well as to appoint, the executive would have suffered degradation; and the relative importance of the house of representatives a grave diminution. To change the tenure of office from the good opinion of the president, who is the employer and needs efficient agents in executing the laws, to the favor of the senate, which has no executive powers, would create a new fealty alien to the duties of an officer of the United States. "The three distinct powers, legislative, judicial, and executive," said Ellsworth, as senator, in 1789, explaining the constitution which he had done so much to frame, "should be placed in different hands. He shall take care that the laws be faithfully executed, are sweeping words. The officers should be attentive to the president, to whom the senate is not a coun * Gilpin, 1521, 1522; Elliot, 524, 525. Glipin, 1520; Elliot, 523, 524. Gilpin, 1520; Elliot, 524. # Gilpin, 1588, 1589; Elliot, 550. |