The Journal of the Debates in the Convention which framed the Constitution of USA Volume I Part 10

M^r Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check ag^{st} encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Const.i.tutionality. In some States the Judges had actually set aside laws as being ag^{st} the Const.i.tution. This was done too with general approbation. It was quite foreign from the nature of y^e office to make them judges of the policy of public measures. He moves to postpone the clause in order to propose "that the National Executive shall have a right to negative any Legislative act which shall not be afterwards pa.s.sed by ---- parts of each branch of the national Legislature."

M^r King seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having partic.i.p.ated in its formation.

M^r Wilson thinks neither the original proposition nor the amendment goes far enough. If the Legislative Exetv & Judiciary ought to be distinct & independent, The Executive ought to have an absolute negative. Without such a self-defence the Legislature can at any moment sink it into non-existence. He was for varying the proposition in such a manner as to give the Executive & Judiciary jointly an absolute negative.

On the question to postpone in order to take M^r Gerry's proposition into consideration it was agreed to, Ma.s.s^s ay. Con^t no. N. Y. ay.

P^a ay. Del. no. Mary^d no. Virg^a no. N. C ay. S. C. ay. G^a ay.

Mr. Gerry's proposition being now before Committee, M^r Wilson & M^r Hamilton move that the last part of it (viz. "w^{ch} s^l not be afterw^{ds} pa.s.sed "unless by ---- parts of each branch of the National legislature") be struck out, so as to give the Executive an absolute negative on the laws. There was no danger they thought of such a power being too much exercised. It was mentioned by Col: Hamilton that the King of G. B. had not exerted his negative since the Revolution.

M^r Gerry sees no necessity for so great a controul over the legislature as the best men in the Community would be comprised in the two branches of it.

Doc^r Franklin, said he was sorry to differ from his colleague for whom he had a very great respect, on any occasion, but he could not help it on this. He had had some experience of this check in the Executive on the Legislature, under the proprietary Government of Pen^a. The negative of the Governor was constantly made use of to extort money. No good law whatever could be pa.s.sed without a private bargain with him. An increase of his salary, or some donation, was always made a condition; till at last it became the regular practice, to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the Governor in the means of self-defence could not be got, till it was agreed that his Estate should be exempted from taxation: so that the people were to fight for the security of his property, whilst he was to bear no share of the burden. This was a mischevous sort of check. If the Executive was to have a Council, such a power would be less objectionable. It was true, the King of G. B. had not, as was said, exerted his negative since the Revolution; but that matter was easily explained. The bribes and emoluments now given to the members of parliament rendered it unnecessary, every thing being done according to the will of the Ministers. He was afraid, if a negative should be given as proposed, that more power and money would be demanded, till at last eno' would be gotten to influence & bribe the Legislature into a compleat subjection to the will of the Executive.

M^r Sherman was ag^{st} enabling any one man to stop the will of the whole. No one man could be found so far above all the rest in wisdom. He thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the Legislature.

M^r Madison supposed that if a proper proportion of each branch should be required to overrule the objections of the Executive, it would answer the same purpose as an absolute negative. It would rarely if ever happen that the Executive const.i.tuted as ours is proposed to be, would have firmness eno' to resist the legislature, unless backed by a certain part of the body itself. The King of G. B. with all his splendid attributes would not be able to withstand y^e unanimous and eager wishes of both houses of Parliament. To give such a prerogative would certainly be obnoxious to the temper of this Country; its present temper at least.

M^r Wilson believed as others did that this power would seldom be used.

The Legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. Its silent operation would therefore preserve harmony and prevent mischief. The case of Pen^a formerly was very different from its present case. The Executive was not then as now to be appointed by the people. It will not in this case as in the one cited be supported by the head of a Great Empire, actuated by a different & sometimes opposite interest. The salary too is now proposed to be fixed by the Const.i.tution, or if D^r F.'s idea should be adopted all salary whatever interdicted. The requiring a large proportion of each House to overrule the Executive check might do in peaceable times; but there might be tempestuous moments in which animosities may run high between the Executive and Legislative branches, and in which the former ought to be able to defend itself.

M^r Butler had been in favor of a single Executive Magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. It had been observed that in all countries the Executive power is in a constant course of increase. This was certainly the case in G. B. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a Cromwell arise in this Country as well as in others.

M^r Bedford was opposed to every check on the Legislature, even the Council of Revision first proposed. He thought it would be sufficient to mark out in the Const.i.tution the boundaries to the Legislative Authority, which would give all the requisite security to the rights of the other departments. The Representatives of the people were the best Judges of what was for their interest, and ought to be under no external controul whatever. The two branches would produce a sufficient controul within the Legislature itself.

Col. Mason observed that a vote had already pa.s.sed he found [he was out at the time] for vesting the executive powers in a single person. Among these powers was that of appointing to offices in certain cases. The probable abuses of a negative had been well explained by D^r F. as proved by experience, the best of all tests. Will not the same door be opened here. The Executive may refuse its a.s.sent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed these into all his own hands, the American Executive, like the British, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. We are M^r Chairman going very far in this business. We are not indeed const.i.tuting a British Government, but a more dangerous monarchy, an elective one. We are introducing a new principle into our system, and not necessary as in the British Gov^t where the Executive has greater rights to defend. Do gentlemen mean to pave the way to hereditary Monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do I venture to tell them, they are mistaken. The people never will consent. And do gentlemen consider the danger of delay, and the still greater danger of a rejection, not for a moment but forever, of the plan which shall be proposed to them. Notwithstanding the oppression & injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. He could not but consider the federal system as in effect dissolved by the appointment of this Convention to devise a better one. And do gentlemen look forward to the dangerous interval between extinction of an old, and the establishment of a new Governm^t and to the scenes of confusion which may ensue. He hoped that nothing like a Monarchy would ever be attempted in this Country. A hatred to its oppressions had carried the people through the late Revolution. Will it not be eno' to enable the Executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance. He never could agree to give up all the rights of the people to a single magistrate: If more than one had been fixed on, greater powers might have been entrusted to the Executive. He hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of the Executive.

Doc^r Franklin. A Gentleman from S. C., (M^r Butler) a day or two ago called our attention to the case of the U. Netherlands. He wished the gentleman had been a little fuller, and had gone back to the original of that Gov^t. The people being under great obligations to the Prince of Orange whose wisdom and bravery had saved them, chose him for the Stadtholder. He did very well. Inconveniences however were felt from his powers; which growing more & more oppressive, they were at length set aside. Still however there was a party for the P. of Orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de Witts, and got the powers revested in the Stadtholder. Afterwards another Prince had power to excite insurrections & make the Stadtholders.h.i.+p hereditary. And the present Stadth^{der} is ready to wade thro' a b.l.o.o.d.y civil war to the establishment of a monarchy. Col. Mason had mentioned the circ.u.mstance of appointing officers. He knew how that point would be managed. No new appointment would be suffered as heretofore in Pens^a unless it be referred to the Executive; so that all profitable offices will be at his disposal. The first man put at the helm will be a good one. No body knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.

On the question for striking out so as to give Executive an absolute negative,--Ma.s.s^{ts} no. Con^t no. N. Y. no. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. no. Georg^a no.

M^r Butler moved that the Resol^n be altered so as to read--"Resolved that the National Executive have a power to suspend any Legislative act for the term of ----."

Doct^r Franklin seconds the motion.

M^r Gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones.

On question "for giving this suspending power" all the States, to wit Ma.s.s^{ts} Con^t N. Y. P^a Del. Mary^d Virg^a N. C. S. C. Georgia, were _No_.

On a question for enabling _two thirds_ of each branch of the Legislature to overrule the revisionary check, it pa.s.sed in the affirmative sub silentio; and was inserted in the blank of M^r Gerry's motion.

On the question on M^r Gerry's motion which gave the Executive alone without the Judiciary the revisionary controul on the laws unless overruled by 2/3 of each branch; Ma.s.s^{ts} ay. Con^t no. N. Y. ay.

P^a ay. Del. ay. Mary^d no. V^a ay. N. C. ay. S. C. ay. Geo. ay.

It was moved by M^r Wilson 2^{ded} by M^r Madison--that the following amendment be made to the last resolution--after the words "National Ex."

to add "& a convenient number of the National Judiciary."[63]

[63] Before the motion, according to King's notes:

"_Madison_--The judiciary ought to be introduced in the business of Legislation--they will protect their department, and united with the Executive make its negatives more strong. There is weight in the objections to this measure--but a check on the Legislature is necessary, Experience proves it to be so, and teaches us that what has been thought a calumny on a republican Govt. is nevertheless true--In all Countries are diversity of Interests, the Rich & the Poor, the Dr. & Cr., the followers of different Demagogues, the Diversity of religious Sects--the Effects of these Divisions in Ancient Govts. are well known, and the like causes will now produce like effects. We must therefore introduce in our system Provisions against the measures of an interested majority--a check is not only necessary to protect the Executive power, but the minority in the Legislature. The independence of the Executive, having the Eyes of all upon him will make him an impartial judge--add the Judiciary, and you greatly increase his respectability."

After the motion: "d.i.c.kinson opposed--You shd. separate the Departments--you have given the Executive a share in Legislation; and it is asked why not give a share to the judicial power. Because the Judges are to interpret the Laws, and therefore shd. have no share in making them--not so with the Executive whose causing the Laws to be Executed is a ministerial office only. Besides we have experienced in the Br. Const.i.tution which confers the Power of a negative on the Executive."--King's _Life and Correspondence of Rufus King_, i., 592.

An Objection of order being taken by M^r Hamilton to the introduction of the last amendment at this time, notice was given by M^r W. & M^r M., that the same w^d be moved to-morrow,--whereupon Wednesday (the day after) was a.s.signed to reconsider the amendment of M^r Gerry.

It was then moved & 2^{ded} to proceed to the consideration of the 9^{th} resolution submitted by M^r Randolph--when on motion to agree to the first clause namely "Resolved, that a National Judiciary be established," It pa.s.sed in the affirmative nem. con.

It was then moved & 2^{ded} to add these words to the first clause of the ninth resolution namely--"to consist of one supreme tribunal, and of one or more inferior tribunals," which pa.s.sed in the affirmative.

The Comm^e then rose and the House

Adjourned.

TUESDAY JUNE 5. IN COMMITTEE OF THE WHOLE

Governor Livingston from New Jersey, took his seat.

The words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of Resol^n 9^{th}. The Clause--"that the National Judiciary be chosen by the National Legislature," being under consideration.

M^r Wilson opposed the appointm^t of Judges by the National Legisl: Experience shewed the impropriety of such appointm^{ts} by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A princ.i.p.al reason for unity in the Executive was that officers might be appointed by a single, responsible person.

M^r Rutlidge was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establis.h.i.+ng any national tribunal except a single supreme one. The State tribunals are most proper to decide in all cases in the first instance.

Doc^r Franklin observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of him, and share his practice among themselves. It was here he said the interest of the electors to make the best choice, which should always be made the case if possible.

Mr. Madison disliked the election of the Judges by the Legislature or any numerous body. Besides the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative a.s.semblies. It was known too that the accidental circ.u.mstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand He was not satisfied with referring the appointment to the Executive, He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in--as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the _appointment by the Legislature_ might be struck out, & a blank left to be hereafter filled on maturer reflection. M^r Wilson second it. On the question for striking out, Ma.s.s^{ts} ay. Con^t no. N. Y. ay. N. J. ay. Pen^a ay.

Del. ay. M^d ay. V^a ay. N. C. ay. S. C. no. Geo. ay.

Mr. Wilson gave notice that he should at a future day move for a reconsideration of that clause which respects "inferior tribunals."

M^r Pinkney gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee he should move to restore the "appointment by the national Legislature."

The following clauses of Resol: 9. were agreed to viz "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution."

The remaining clause of Resolution 9. was postponed.

Resolution 10 was agreed to,--viz--that provision ought to be made for the admission of States lawfully arising within the limits of the U.

States, whether from a voluntary junction of Government & territory, or otherwise with the consent of a number of voices in the National Legislature less than the whole.

The 11. Propos: "_for guaranteeing to States Republican Gov^t & territory_" &c. being read M^r Patterson[64] wished the point of representation could be decided before this clause should be considered, and moved to postpone it, which was not opposed, and agreed to,--Connecticut & S. Carolina only voting ag^{st} it.

[64] "M^r Patterson is one of those kind of Men whose powers break in upon you, and create wonder and astonishment. He is a Man of great modesty, with looks that bespeak talents of no great extent,--but he is a Cla.s.sic, a Lawyer, and an Orator;--and of a disposition so favorable to his advancement that every one seemed ready to exalt him with their praises. He is very happy in the choice of time and manner of engaging in a debate, and never speaks but when he understands his subject well. This Gentleman is about 43 Y.

of age, of a very low stature."--Pierce's Notes, _Amer.

Hist. Rev._, iii., 328.