The Journal of the Debates in the Convention which framed the Constitution of USA Volume II Part 44

On motion of M^r Madison, "ought to" were struck out, and "shall"

inserted; and "shall" between "Legislature" & "by general laws" struck out, and "may" inserted, nem: con:

On the question to agree to the report as amended viz "Full faith & credit shall be given in each State to the public acts, records & judicial proceedings of every other State, and the Legislature may by general laws prescribe the manner in which such acts records & proceedings shall be proved, and the effect thereof." Agreed to with^t a count of Sts.

The clause in the Report "To establish uniform laws on the subject of Bankruptcies" being taken up.

M^r Sherman observed that Bankruptcies were in some cases punishable with death by the laws of England, & He did not chuse to grant a power by which that might be done here.

M^r Gov^r Morris said this was an extensive & delicate subject. He would agree to it because he saw no danger of abuse of the power by the Legislature of the U. S.

On the question to agree to the clause

N. H. ay. Mas. ay. C^t no. N. J. ay. P^a ay. M^d ay. V^a ay.

N. C. ay. S. C. ay. Geo. ay.

M^r Pinkney moved to postpone the Report of the Committee of Eleven (see Sep^r 1.) in order to take up the following,

"The members of each House shall be incapable of holding any office under the U. S. for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively." He was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility. He considered the eligibility of members of the Legislature to the honourable offices of Government, as resembling the policy of the Romans, in making the temple of virtue the road to the temple of fame.

On this question

N. H. no. Mas. no. C^t no. N. J. no. P^a ay. M^d no. V^a no.

N. C. ay. S. C. no. Geo. no.

M^r King moved to insert the word "created" before the word "during" in the Report of the Committee. This he said would exclude the members of the first Legislature under the Const.i.tution, as most of the offices w^d then be created.

M^r Williamson 2^{ded} the motion. He did not see why members of the Legislature should be ineligible to _vacancies_ happening during the term of their election.

M^r Sherman was for entirely incapacitating members of the Legislature.

He thought their eligibility to offices would give too much influence to the Executive. He said the incapacity ought at least to be extended to cases where salaries should be _increased_, as well as _created_, during the term of the member. He mentioned also the expedient by which the restriction could be evaded to wit: an existing officer might be translated to an office created, and a member of the Legislature be then put into the office vacated.

M^r Gov^r Morris contended that the eligibility of members to office w^d lessen the influence of the Executive. If they cannot be appointed themselves, the Executive will appoint their relations & friends, retaining the service & votes of the members for his purposes in the Legislature. Whereas the appointment of the members deprives him of such an advantage.

M^r Gerry, thought the eligibility of members would have the effect of opening batteries ag^{st} good officers, in order to drive them out & make way for members of the Legislature.

M^r Gorham was in favor of the amendment. Without it we go further than has been done in any of the States, or indeed any other Country. The experience of the State Governments where there was no such ineligibility, proved that it was not necessary; on the contrary that the eligibility was among the inducements for fit men to enter into the Legislative service.

M^r Randolph was inflexibly fixed against inviting men into the Legislature by the prospect of being appointed to offices.

M^r Baldwin remarked that the example of the States was not applicable.

The Legislatures there are so numerous that an exclusion of their members would not leave proper men for offices. The case would be otherwise in the General Government.

Col: Mason. Instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters.

M^r Wilson considered the exclusion of members of the Legislature as increasing the influence of the Executive as observed by M^r Gov^r Morris at the same time that it would diminish, the general energy of the Government. He said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction.

M^r Pinkney. The first Legislature will be composed of the ablest men to be found. The States will select such to put the Government into operation. Should the Report of the Committee or even the amendment be agreed to, The great offices, even those of the Judiciary Department which are to continue for life, must be filled while those most capable of filling them will be under a disqualification.

On the question on M^r King's motion

N. H. ay. Mas. ay. C^t no. N. J. no. P^a ay. M^d no. V^a ay.

N. C. ay. S. C. no. Geo. no.

The amendment being thus lost by the equal division of the States, M^r Williamson moved to insert the words "created or the emoluments whereof shall have been increased" before the word "during" in the Report of the Committee.

M^r King 2^{ded} the motion, & on the question

N. H. ay. Mas. ay. C^t no. N. J. no. Pa. ay. M^d no. V^a ay.

N. C. ay. S. C. no. Geo. divided.

The last clause rendering a Seat in the Legislature & an office incompatible was agreed to nem. con:

The Report as amended & agreed to is as follows.

"The members of each House shall be ineligible to any Civil office under the authority of the U. States, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected--And no person holding any office under the U. S. shall be a member of either House during his continuance in office."

Adjourned.

TUESDAY SEP^R 4. 1787. IN CONVENTION

M^r Brearly from the Committee of Eleven made a further partial Report as follows

"The Committee of Eleven to whom sundry resolutions &c. were referred on the 31^{st} of August, report that in their opinion the following additions and alterations should be made to the Report before the Convention, viz.[50]

[50] This is an exact copy. The variations in that in the printed Journal are occasioned by its incorporation of subsequent amendments. This remark is applicable to other cases.--Madison's Note. The report was copied by the Secretary of the Convention, William Jackson, into the Journal, after it had been read. Afterwards two sentences were altered by interlining with lead pencil. The alterations (indicated by italics) are as follows: Paragraph 4, "The person having the greatest number of votes ... if such number be a majority of _the whole number_ of the electors _appointed_." Paragraph 7, "But no treaty, _except treaties of peace_, shall be made," etc. The changes in paragraph 4 are unimportant: the change in paragraph 7 was an amendment offered by Madison September 7th, and adopted.--Const. MSS.--_Journal of Federal Convention_, p.

323, _et seq._

(1.) The first clause of sect: 1. art. 7. to read as follows--'The Legislature shall have power to lay and collect taxes duties imposts & excises, to pay the debts and provide for the common defence & general welfare of the U. S.'

(2.) At the end of the 2^d clause of sect. 1. art. 7. add 'and with the Indian tribes.'

(3.) In the place of the 9^{th} art. Sect. 1. to be inserted 'The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present.'

(4.) After the word 'Excellency' in sect. 1. art. 10. to be inserted. 'He shall hold his office during the term of four years, and together with the Vice-President, chosen for the same term, be elected in the following manner, viz. Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives, to which the State may be ent.i.tled in the Legislature. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the Seat of the Gen^l Government, directed to the President of the Senate--The President of the Senate shall in that House open all the certificates, and the votes shall be then & there counted. The Person having the greatest number of votes shall be the President, if such number be a majority of that of the electors; and if there be more than one who have such a majority, and have an equal number of votes, then the Senate shall immediately choose by ballot one of them for President: but if no person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President, and in every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the Vice-President. The Legislature may determine the time of choosing and a.s.sembling the Electors, and the manner of certifying and transmitting their votes.'

(5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Const.i.tution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.'

(6) 'Sect. 3. The vice-president shall be ex officio President of the Senate, except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside, and excepting also when he shall exercise the powers and duties of President, in which case & in case of his absence, the Senate shall chuse a President pro tempore--The vice President when acting as President of the Senate shall not have a vote unless the House be equally divided.'

(7) 'Sect. 4. The President by and with the advice and Consent of the Senate, shall have power to make Treaties; and he shall nominate and by and with the advice and consent of the Senate shall appoint amba.s.sadors, and other public ministers, Judges of the Supreme Court, and all other Officers of the U.S. whose appointments are not otherwise herein provided for. But no Treaty shall be made without the consent of two thirds of the members present.'

(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 princ.i.p.al officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices.'

The latter part of Sect. 2. art: 10. to read as follows.

(9) 'He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for Treason, or bribery, and in case of his removal as aforesaid, death, absence, resignation or inability to discharge the powers or duties of his office, the vice-president shall exercise those powers and duties until another President be chosen, or until the inability of the President be removed.'"