September 7, 1787: The Vice President, Treaties and the President's Officers

George Washington by Rembrandt Peale, 1795. National Portrait Gallery, Smithsonian Institution.

"I solecet this favour for my Self my Children and posterity and for the benefit of all the Israelites through the 13 united States of america."
— Jonas Phillips, a Jewish merchant, former indentured servant and a founder of one of America's oldest synagogues, writing to Washington to ask that Jews be allowed to serve in the federal government

Friday, September 7, 1787

The Convention went back to the presidency.

Succession and qualifications

• On motions by Randolph (VA), and by Madison (VA) with Gouverneur Morris (PA), Congress may decide by law who serves as President if both the President and Vice President are dead or disqualified.
• When the House chooses the President, a quorum is members from three-fourths of the states, and winning takes a majority of all the state delegations.
• The requirements that a President be thirty-five, a natural-born citizen and a resident for 14 years passed without opposition.

The Vice President and the Senate

The draft said "The Vice President shall be ex officio President of the Senate" — presiding over it in ceremony, and voting only to break ties.

• Gerry (MA) said this broke the separation of powers: it was as bad as putting the President himself at the head of the legislature, given how close the two would be. He'd rather have no Vice President at all. Mason (VA) and many others agreed with some or all of this.
• Sherman (CT) disagreed, admitting the job was mostly make-work: without the Senate, he said, the Vice President would have nothing to do.
• Williamson (NC) said the office wasn't wanted. It existed only because each elector had to vote for two candidates, one from outside the elector's own state — a device to make every elector back at least one out-of-stater. The vice presidency was an accidental by-product of the tangled Electoral College compromises.

The clause passed 8–2–1 — New Jersey and Maryland against, North Carolina absent.

Treaties

The draft had the President make treaties "by and with the advice and consent of the Senate."

• Wilson (PA), seconded by Fitzsimons (PA), moved to add the House: treaties have the force of law, so both houses should pass them.
• Sherman replied that treaties often need secret negotiation, so the larger House was better left out. Wilson's motion failed 1–10, only Pennsylvania in favor.
• The Convention approved the appointment clauses: permanent appointments need the Senate's approval; recess appointments can be made by the President alone.

Peace treaties. The draft required two-thirds of the Senate for every treaty.

• Madison moved to let a bare majority approve peace treaties. Passed unanimously.
• He then moved to let two-thirds of the Senate make peace without the President. Executives — kings, presidents — gain power in wartime, he said, and European rulers often dragged wars out to keep it. Butler (SC) seconded, and agreed.
• • Gorham (MA) called it unnecessary: Congress pays for the military, and could defund a war it didn't like.
  • G. Morris said the President, as "the general guardian of the national interests," should be part of any peace.
  • Gerry agreed: to end a war, the Senate might give away territory or local interests.
  • The motion failed 3–8; Maryland, South Carolina and Georgia in favor.

An executive council?

The next clause let the President "require the opinion in writing of the principal officer in each of the Executive Departments."

• Mason strongly objected to a President appointing officers who answered to the President — not even "the most despotic government," he said, had given its executive such power. He proposed an Executive Council of six officers chosen by Congress, two each from New England, the Middle Atlantic states and the South.
• Franklin seconded: a council would check a bad President and relieve a good one.
• Wilson, Dickinson (DE) and Madison backed it. Only G. Morris spoke against, noting that the Committee of Detail had considered and rejected the idea.
• It failed 3–8 — Maryland, South Carolina and Georgia in favor.

The Committee of Detail's wording stood: the President appoints officers with the Senate's approval, and they answer to the President. Left unsaid: which departments there would be, what their officers would do, and whether they'd meet with the President. Congress would create the departments, and the first President would decide how to use them.

In short

• More of the presidency and vice presidency took shape.
• The Vice President would preside over the Senate, mostly in ceremony.
• The President would make treaties with two-thirds of the Senate.
• The President would appoint executive officers with the Senate's approval.
• The Constitution said little about how the executive branch would be built, leaving Congress and the President plenty of room — and no clear rules — for organizing the government.

Around the Convention

• Johnson (CT) dined with Benjamin Chew, former chief justice of Pennsylvania, at Chew's house on Third Street.
• Jonas Phillips, a Jewish merchant in Philadelphia, wrote to Washington (VA) about Pennsylvania's oath of office, which made every officeholder swear belief in one God as creator, ruler, rewarder and punisher, and in the divine inspiration of the Old and New Testaments. He asked that no such oath be required of federal officers. The letter was well aimed — Washington seems to have been strikingly free of the prejudice against Jews and Catholics common in his time — but it came too late to matter: a week earlier, the Convention had already written in that "No religious test shall ever be required as a qualification to any office or public trust under the authority of the United States."

Philadelphia today

Clear, cool and pleasant.

The series: The Constitutional Convention: A Day-by-Day Account for September 1787 · previous: September 6, 1787: The Electoral College Completed · next: September 8, 1787: Ready for a Second Draft

Sources

Based on "September 7, 1787: Presidential Power," The Constitutional Convention: A Day-by-Day Account, Independence National Historical Park, National Park Service; a work of the United States government in the public domain. Peale's 1795 portrait is in the public domain.