Having agreed on the critical issue of choosing the executive, now called the President and Vice President, the Convention resumed consideration of other details pertaining to the executive department presented by the Committee on Postponed Parts.
The first issue concerned presidential succession. Edmund Randolph proposed that the legislature could, by law, declare which officer of the United States should act as President in case of the death, resignation, or disability of both the President and Vice President. Such a person would “act accordingly until the time of electing a President shall arrive.” James Madison observed Randolph’s motion would “prevent supplying the vacancy by an intermediate election of the President,” and moved to amend Randolph’s motion with “until such disability be removed, or a President shall be elected.” Randolph’s motion as amended by Madison was approved.
Without dissent, the Convention formally agreed that “the President should be a natural-born citizen, have been a resident for fourteen years, and be at least thirty-five years of age.” Issues regarding the Vice-President, however, were more controversial. When the Committee recommended that “the Vice President shall be ex officio President of the Senate,” Elbridge Gerry stood in opposition. “We might as well put the President himself at the head of the Legislature,” he complained. “The close intimacy that must subsist between the President and Vice President makes it absolutely improper.” Frankly, Elbridge was against having any Vice President at all.
If that is true, cracked Gouverneur Morris, “The Vice President then will be the first heir apparent that ever loved his father. If there should be no Vice President, the President of the Senate would be temporary successor, which would amount to the same thing.”
Roger Sherman saw “no danger in the case.” After all, he mused, “If the Vice President were not to be President of the Senate, he would be without employment, and some member by being made President must be deprived of his vote, unless when an equal division of votes might happen in the Senate, which would be but seldom.” But George Mason did see “danger.” For Mason, the office of Vice President as proposed is an “encroachment on the rights of the Senate…It mixes too much the Legislative and Executive, which as well as the Judiciary departments, ought to be kept as separate as possible.”
Mason went on to express his concerns about appointments, not wishing to vest so dangerous a power in the President alone but also dubious about giving the power to either branch of the legislature. To avoid both, he proposed that “a privy Council of six members to the President should be established.” To be chosen by the Senate for terms of six years, two would come “out of the Eastern, two out of the middle, and two out of the Southern quarters of the Union” and rotate every second year. Concurrence of the Senate would be required only in the appointment of ambassadors and making treaties.
Mason argued that in rejecting such a Council to the President, “we are about to try an experiment on which the most despotic governments had never ventured.” He moved to direct the Committee on Postponed Parts to prepare a recommendation for establishing an Executive Council. Benjamin Franklin seconded the motion, asserting that “a Council would not only be a check on a bad President but be a relief to a good one.” Morris, a member of the Committee, reported the Committee had actually considered the question of a Council and decided against it. Mason’s motion was defeated 3 – 8.
Appointment of national officers and approval of treaties still must be decided. The Committee report provided that “the President, by and with the consent of the Senate, shall have power to make treaties, etc.” After a failed attempt to substitute “the House of Representatives” for “the Senate,” the Committee’s proposal passed nem. con. Nevertheless, other issues remained. For example, should approval of treaties require a two-thirds vote? James Wilson answered “no.” A two-thirds requirement “puts it in the power of a minority to control the will of majority.”
Madison went so far as to require that two thirds of the Senate ratify a treaty, but without the concurrence of the President. Pierce Butler agreed. “It is a necessary security against ambitious and corrupt Presidents,” he argued. But Madison’s motion failed 3 – 8. Wilson was also defeated, and the Convention voted in favor of requiring a two-thirds vote of the Senate for ratification of treaties.
James Madison then proposed that the two-thirds requirement not be applied to “treaties of peace.” His motion was readily adopted, but his proposal that such treaties be made without the concurrence of the President met with stiff resistance. Madison was concerned that “the President would necessarily derive so much power and importance from a state of war that he might be tempted, if authorized, to impede a treaty of peace.” His motion failed 3 – 8.
After further debate, the Committee’s proposal that the President “nominate and appoint ambassadors,” with the advice and consent of the Senate, was agreed to, although some delegates continued to assert it improperly mixes the executive and legislative branches. Morris, on the other hand, sees security in the proposition. “As the President is to nominate, there would be responsibility, and as the Senate is to concur, there would be security.”
The Convention has made significant progress, if not unanimity, deliberating the recommendations from David Brearley’s Committee on Postponed Parts. Brearley seldom addresses the Convention on the floor, but he has deftly guided the Committee’s negotiations with experience and a calm judicial temperament that fosters compromise and conciliation. Their work has hastened the conclusion of the Convention’s work.