MANNER OF CHOOSING THE PRESIDENT. 563

Judge Brearly's Committee further recommended, and the recommendation was unanimously adopted, that Congress should have power to lay and collect taxes, duties, imposts and excises, and to pay the debts and provide for the common defense and general welfare of the United States,1 thus finally settling the language of this most important provision. The power to regulate commerce should also include that "with the Indian tribes."2

But the Grand Committee also recommended much new matter. The Senate should have power to try impeachments, but no person should be convicted without the concurrence of two-thirds of the members present. The clause, however, was postponed for the present in order that the mode of choosing the President might first be settled. Six new resolutions relating to the executive were also reported. The President should hold his office for four years, and, together with a Vice-President chosen for the same term, be elected in the following manner :3 Each State should appoint in such manner as its legislature might direct, a number of electors, equal to the whole number of senators and members of the House of Representatives to which it might be entitled in Congress. The electors should meet in their respective States and vote by ballot for two persons, of whom one, at least, should not be a member of the State with themselves. They should make a list of all the persons to be voted for, and of the number of votes for each, which list they should sign,

1 September 4. See Constitution, Article I, Section 8, Clause 1. 2 Constitution, Article I, Section 8, Clause 3.

8 The committee's recommendation was adopted almost literally, but it will be remembered it was changed in 1804, by the twelfth amendment, an account of which is given in Vol. II, Book III, Ch. VII. As the original recommendation was made by the committee as a whole the authorship of the article is unknown.

564

COUNTING THE ELECTORAL VOTE.

certify and transmit to the seat of the general government, directed to the President of the Senate.

In the presence of the Senate he should open all the certificates and the votes should then and there be counted. The person having the greatest number should be the president, if the number was a majority of the electoral votes; and if there should be more than one person having the majority, and having an equal number of votes, the Senate should immediately, by ballot, choose one of them for President. If no person have the majority, then from the five highest on the list1 the Senate should choose the President by ballot. In every case, after the choice of President, the person then having the highest number of votes should be the Vice-President, but if there should remain two or more, who had an equal number of votes, the Senate should choose the Vice-President from among them. Congress might determine the time of choosing the electors and of their assembling, and of the manner of certifying and transmitting their votes.2 Thus the Grand Committee attempted to solve the vexatious question of the manner of choosing the President. They had departed from the original plan, an election by the legislature, recommended by the Committee of Detail, and advised the adoption of Morris' plan, a choice by presidential electors, appointed by each State in such manner as its legislature might direct.

Gorham objected to this method because the candidate ranking in votes next to the President would become the Vice-President; the decision would not be referred to the Senate, so that a very obscure man, with a few votes might possibly be chosen. Sherman explained that the

1 For the discussion of the relative merit of five or three candidates, in 1804, see Vol. II, post, pp. 307 et seq.

2 Compare Constitution, Article II, Section 1, Clauses 2, 3 and 4.

THE PLAN AN INNOVATION.

565

Committee's purpose was, first, to get rid of the objections which would lie to an election by the legislatures, and, secondly, to render the executive independent. As the choice, in such a case as Gorham referred to, would be made out of the five highest candidates, he thought that obscure men were sufficiently ruled out. But if both President and Vice-President must be chosen out of the five highest, Madison feared that the attention of the electors1 would be too much drawn over to the Senate, and would tend to give the nomination of candidates to the larger States.

The method of choosing the President recommended by the Committee was so radical an innovation, both Randolph and Pinckney called for its more particular explanation. The purpose sought, replied Morris, was to avoid the danger of intrigue and factions and the influence incident to an appointment by Congress; also, to avoid the difficulty of making the Senate a court of impeachment, although there seemed no alternative, and therefore, it had been retained. The general disapproval of an election by Congress, or directly by the people, and the necessity of making the President independent had had weight with the Committee; a conclusive reason for making the Senate instead of the Supreme Court the judge of impeachment, was that the Court was to try the President after the impeachment trial. Mason was convinced that the Committee's plan had removed the capital objections of cabal and corruption, but it was still open to the strong objection that the President, in most cases, would be chosen by the Senate, an improper body for the purpose. Butler agreed with him.

Pinckney saw many defects in the proposed method;

1 The term "Electoral College" was not used during the discussion.

566

DIFFICULTIES IN THE WAY.

it would throw the appointment into the hands of the Senate; the electors, being strangers to the candidates, would be compelled to decide upon their comparative merits; the executive would be re-eligible, a danger to public liberty, and, finally, the men who elected the President would be his judges in case of impeachment. To remove part of these objections, and believing that the advantage of re-eligibility hardly balanced the objections of the dependence of the President on the Senate for a re-appointment, Williamson suggested that the vote, when the election went to the Senate, should be restrained to the two highest on the list of candidates.

Most of the members saw faults in the plan and did not hesitate to state them, though they had nothing to offer as a substitute or remedy. The manner of choosing the executive had divided the Convention all along, and in truth, as Wilson said, was the most difficult question it had to decide. The method now proposed appealed to him, because it got rid of the evil of cabal and corruption, and he believed that, as time passed, men would rise to a degree of eminence which would enable the electors in every part of the Union to know of them. The method also cleared the way for the consideration of the question of re-eligibility on its merits, which hitherto had been impossible. But he thought in case of a disputed election, that the choice ought to go to the House rather than to the Senate alone, and that it should be confined to a smaller number of candidates than five. There was also an obvious advantage in an election by the House, because its members were changed so often that the influence and possibility of factions, which so permanent a body as the Senate might have, would be prevented. Wilson's hint proved in the end the means of solving the problem.

It appears that the Committee had given the election

PRESIDENT AND VICE-PRESIDENT.

567

to the Senate because, as Morris said, it would have fewer members, and therefore the President would be more independent than if chosen by the more numerous House. The Committee's recommendation was of so grave importance that its further discussion was postponed in order that each member might have a copy of the entire report, the remaining clauses of which recommended that no person except a natural born citizen or a citizen of the United States at the time of the adoption of the Constitution, should be eligible to the presidency; and that no person be elected who was not of the age of thirty-five years, or who had not been at least fourteen years a resident within the United States.1 The Vice-President should be ex officio President of the Senate, except when it was sitting to try the impeachment of the President, in which case the Chief-Justice should preside. The Vice-President should preside also, except when he should exercise the powers and duties of the President, in which case, or in case of his absence, the Senate should choose a president pro tempore.1

When acting as President of the Senate, the Vice-President should have no vote, unless the Senate was equally divided. With the advice and consent of the Senate, the President should make treaties, and he should nominate, and with its advice and consent, appoint, ambassadors and other public ministers, judges of the Supreme Court and all other officers of the United States, whose appointments were not otherwise provided for; but no treaty should be made without the consent of two-thirds of the

1 Compare Constitution, Article II, Section 1, Clause 5.

2 Constitution, Article I, Section 3, Clause 4.

a Id., Clause 6.

4 Id., Clause 5. 5 Id., Clause 4.