Yesterday and today the Convention has considered additional propositions in the Report of the Committee of the Whole. After refusing to reconsider its vote for equality of States in the Senate, the Convention readily agreed the executive should consist of a single person but debated on the manner of his selection. The Report proposes “selection by the national legislature.” Gouverneur Morris objected immediately. “He will be a mere creature of the legislature if appointed and impeachable by that body,” he asserted. He prefers they “be elected by the people at large…If the legislature elect, it will be the work of intrigue, of cabal, and of faction. It will be like the election of a pope by a conclave of cardinals.”  He moved that the people elect the executive.

Roger Sherman supports the Report. “The sense of the nation would be better expressed by the legislature,” he said. The legislature will be better informed. Charles Pinckney agreed, stressing that the people are easily led by “a few active and designing men.”

The venerable George Mason has at times observed hypocrisy in the debates. “At one moment we are told that the legislature is entitled to thorough confidence, and to indefinite power,” he said, “at another, that it will be governed by intrigue and corruption, and cannot be trusted at all.” Adding, with tongue in cheek, that he “does not want to dwell on this inconsistency,” he noted the size of the country makes it impossible for the people to “judge of the respective pretensions of the candidates.” For Mason, “it would be as unnatural to refer the choice of a proper character of a chief magistrate to the people, as it would to refer a trial of colors to a blind man.”

Election of the executive by the people was defeated by 1 – 9. Only Pennsylvania voted “yes.” By a similar vote of 2 – 8, Luther Martin’s motion to have the executive elected by electors chosen by the legislature also failed. Delaware and Maryland voted “yes.” Finally, the Convention voted unanimously for the Report’s recommendation to have the legislature chose the executive.  It also voted, nem. com., that the executive “carry into execution the national laws” and “appoint to offices in cases not otherwise provided for.”

The length of the executive’s term and eligibility for re-election are closely related and provoked some debate. The Report provides for a term of seven years and ineligibility. Georgia’s William Houston moved to strike “ineligibility.” Morris agreed and seconded the motion. Ineligibility, he put forth, “tends to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines.” Their motion passed 6 – 4. The executive will be eligible for re-election.

Now that the executive is to be re-eligible, Jacob Broom mused, he would prefer a shorter term. If he had been ineligible for re-election, he would have supported seven years. James McClurg then moved to “strike seven years” and insert “during good behavior,” assuring independence from the legislature. Mason had strong objections. “It would be impossible to define misbehavior in such a manner as to subject it to a proper trial,” he said. He considered “an executive during good behavior as a softer name only for an executive for life. The next would be an easy step to hereditary monarchy.” 

McClurg’s motion was debated briefly before being defeated 4 – 6. Prior to adjournment, the Convention agreed unanimously to reconsider the issue of eligibility.

This morning, delegates surprisingly approved, without dissent, authority of the executive to veto legislative acts “not afterwards passed by 2/3 of each branch” and establishment of a “national judiciary to consist of one supreme tribunal.” The method of choosing judges is more controversial. The Report of the Committee of the Whole proposes they be selected by the 2nd branch of the legislature. Nathaniel Gorham prefers the system used in his State, Massachusetts, where the executive chooses the judges with the advice and consent of the Senate. Luther Martin retreated into his “small State” posture, strenuously arguing for an appointment by the 2nd branch. “Being taken from all the States,” he said, “it would be best informed of characters and most capable of making a fit choice.”

Mason cautioned against independent executive appointment of judges. He reminded delegates the Report proposes that the national judiciary try impeachments of national officers. “If the judges were to form a tribunal for that purpose,” he said, “they surely ought not to be appointed by the executive.” Then Gorham moved the executive appoint judges with the advice and consent of the Senate. The motion failed 4 – 4 – 1 (Georgia’s William Houston absent), but the issue is clearly undecided.

That judges should “hold their offices during good behavior” was agreed to nem. con. That judges’ salaries may be increased, but not decreased, during their time in office was also approved, by 6 – 2 – 1. Whether “the national legislature should be empowered to appoint inferior tribunals” is more controversial. Pierce Butler sees “no necessity for such tribunals.” “The State tribunals might do the business,” he said.  Unsurprisingly, Martin agreed.  However, as Gorman reminded them, “federal courts are already in the States, with jurisdiction for trials of piracies, etc., committed on the high seas, and no complaints have been made by the States or the courts of the States.” He believes inferior courts are essential to the authority of the national government. Others spoke in support and the motion passed nem. com. 

The remainder of today’s deliberations moved swiftly, approving resolutions providing for admission of new States; authorization for the current Congress to complete its work; guarantees to each State “a republican form of government;” and assurances “that each State shall be protected against foreign and domestic violence.”

This evening, James Madison wrote to his friend Thomas Jefferson, “still under the mortification of being restrained from disclosing” proceedings of the Convention. While much work remains, he expressed “little doubt that the people will be as ready to receive as we shall be able to propose, a government that will secure their liberties and happiness.”