The Journal of the Debates in the Convention which framed the Constitution of USA Volume I Part 38

inclusive, to insert "to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the Government of the individual States in any matters of internal police which respect the Gov^t of such States only, and wherein the general welfare of the U. States is not concerned."

M^r Wilson 2^{ded} the amendment as better expressing the general principle.

M^r Gov^r Morris opposed it. The internal police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected.

M^r Sherman, in explanation of his idea read an enumeration of powers, including the power of levying taxes on trade, but not the power of _direct taxation_.

M^r Gov^r Morris remarked the omission, and inferred that for the deficiencies of taxes on consumption, it must have been the meaning of Mr. Sherman, that the Gen^l Gov^t should recur to quotas & requisitions, which are subversive of the idea of Gov^t.

M^r Sherman acknowledged that his enumeration did not include direct taxation. Some provision he supposed must be made for supplying the deficiency of other taxation, but he had not formed any.

On Question on M^r Sherman's motion it pa.s.sed in the negative

Mas. no. Con^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a no.

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

M^r Bedford moved that the 2^d member of Resolution 6. be so altered as to read, "and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are severally incompetent, or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation."

M^r Gov^r Morris 2^{ds} the motion.

M^r Randolph. This is a formidable idea indeed. It involves the power of violating all the laws and const.i.tutions of the States, and of intermeddling with their police. The last member of the sentence is also superfluous, being included in the first.

M^r Bedford. It is not more extensive or formidable than the clause as it stands: _no State_ being _separately_ competent to legislate for the _general interest_ of the Union.

On question for agreeing to M^r Bedford's motion it pa.s.sed in the affirmative.

Mas. ay. Con^t no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no.

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

On the sentence as amended, it pa.s.sed in the affirmative.

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay.

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

The next. "To negative all laws pa.s.sed by the several States contravening in the opinion of the Nat: Legislature the articles of Union, or any treaties subsisting under the authority of y^e Union."

M^r Gov^r Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative authority should be given to the Gen^l Government.

M^r Sherman thought it unnecessary; as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the legislature would wish to be negatived.

M^r L. Martin considered the power as improper & inadmissible. Shall all the laws of the States be sent up to the Gen^l Legislature before they shall be permitted to operate?

M^r Madison, considered the negative on the laws of the States as essential to the efficacy & security of the Gen^l Gov^t. The necessity of a general Gov^t proceeds from the propensity of the States to pursue their particular interests in opposition to the general interest. This propensity will continue to disturb the system, unless effectually controuled. Nothing short of a negative on their laws will controul it.

They will pa.s.s laws which will accomplish their injurious objects before they can be repealed by the Gen^l Legisl^{re} or be set aside by the National Tribunals. Confidence can not be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less depend^t on the Legislatures. In Georgia they are appointed annually by the Legislature. In R. Island the Judges who refused to execute an unconst.i.tutional law were displaced, and others subst.i.tuted, by the Legislature who would be the willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British system. Nothing could maintain the harmony & subordination of the various parts of the empire, but the prerogative by which the Crown, stifles in the birth every Act of every part tending to discord or encroachment. It is true the prerogative is sometimes misapplied thro' ignorance or a partiality to one particular part of y^e empire; but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Nat^l Legisl: that might be rendered unnecessary by some emanation of the power into the States, so far at least as to give a temporary effect to laws of immediate necessity.

M^r Gov^r Morris was more & more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside in the Judiciary departm^t and if that security should fail; may be repealed by a Nation^l law.

M^r Sherman. Such a power involves a wrong principle, to wit, that a law of a State contrary to the articles of the Union would if not negatived, be valid & operative.

M^r Pinkney urged the necessity of the Negative.

On the question for agreeing to the power of negativing laws of States &c. it pa.s.sed in the negative.

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

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

M^r Luther Martin moved the following resolution "that the Legislative acts of the U. S. made by virtue & in pursuance of the articles of Union and all Treaties made & ratified under the authority of the U. S. shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their Citizens and inhabitants--& that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding" which was agreed to nem: con:

9^{th} Resol: "that Nat^l Executive consist of a single person," Ag^d to nem. con.

"To be chosen by the National Legisl:"

M^r Govern^r Morris was pointedly ag^{st} his being so chosen. He will be the mere creature of the Legisl: if appointed & impeachable by that body. He ought to be elected by the people at large, by the freeholders of the Country. That difficulties attend this mode, he admits. But they have been found superable in N. Y. & in Con^t and would he believed be found so, in the case of an Executive for the U. States. If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. 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; real merit will rarely be the t.i.tle to the appointment. He moved to strike out "National Legislature," & insert "citizens of the U. S."

M^r Sherman thought that the sense of the Nation would be better expressed by the Legislature, than by the people at large. The latter will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment. If the choice be made by the Legisl^{re} a majority of voices may be made necessary to const.i.tute an election.

M^r Wilson. Two arguments have been urged ag^{st} an election of the Executive Magistrate by the people. 1 the example of Poland where an Election of the supreme Magistrate is attended with the most dangerous commotions. The cases he observed were totally dissimilar. The Polish n.o.bles have resources & dependants which enable them to appear in force, and to threaten the Republic as well as each other. In the next place the electors all a.s.semble in one place; which would not be the case with us. The 2^d arg^t is that a _majority_ of the people would never concur.

It might be answered that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Ma.s.s^{ts}, where the Legislature by majority of voices, decide in case a majority of people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue & cabal. A particular objection with him ag^{st} an absolute election by the Legisl^{re} was that the Exec: in that case would be too dependent to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people.

M^r Pinkney did not expect this question would again have been brought forward: An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men.

The most populous States by combining in favor of the same individual will be able to carry their points. The Nat^l Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.

M^r Gov^r Morris. It is said that in case of an election by the people the populous States will combine & elect whom they please. Just the reverse. The people of such States cannot combine. If there be any combination it must be among their representatives in the Legislature.

It is said the people will be led by a few designing men. This might happen in a small district. It can never happen throughout the continent. In the election of a Gov^r of N. York, it sometimes is the case in particular spots, that the activity & intrigues of little partizans are successful, but the general voice of the State is never influenced by such artifices. It is said the mult.i.tude will be uninformed. It is true they would be uninformed of what pa.s.sed in the Legislative Conclave, if the election were to be made there; but they will not be uninformed of those great & ill.u.s.trious characters which have merited their esteem & confidence. If the Executive be chosen by the Nat^l Legislature, he will not be independent on it; and if not independent, usurpation & tyranny on the part of the Legislature will be the consequence. This was the case in England in the last Century. It has been the case in Holland, where their Senates have engrossed all power. It has been the case every where. He was surprised that an election by the people at large should ever have been likened to the polish election of the first Magistrate. An election by the Legislature will bear a real likeness to the election by the Diet of Poland. The great must be the electors in both cases, and the corruption & cabal w^{ch} are known to characterize the one would soon find their way into the other. Appointments made by numerous bodies, are always worse than those made by single responsible individuals, or by the people at large.

Col. Mason. It is curious to remark the different language held at different times. At one moment we are told that the Legislature is ent.i.tled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all. But not to dwell on this inconsistency he would observe that a Government which is to last ought at least to be practicable. Would this be the case if the proposed election should be left to the people at large. He conceived it would be as unnatural to refer the choice of a proper character for Chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.

M^r Wilson, could not see the contrariety stated (by Col. Mason.) The Legisl^{re} might deserve confidence in some respects, and distrust in others. In acts which were to affect them & y^r Const.i.tuents precisely alike confidence was due. In others jealousy was warranted. The appointment to great offices, where the Legisl^{re} might feel many motives, not common to the public confidence was surely misplaced. This branch of business it was notorious, was the most corruptly managed of any that had been committed to legislative bodies.

M^r Williamson, conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an app^t by lot, and by choice. There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State, and the largest State will be sure to succeed. This will not be Virg^a however. Her slaves will have no suffrage. As the Salary of the Executive will be fixed, and he will not be eligible a 2^d time, there will not be such a dependence on the Legislature as has been imagined.

Question on an election by the people instead of the Legislature, which pa.s.sed in the negative.

Mas. no. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a no.

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

M^r L. Martin moved that the Executive be chosen by Electors appointed by the several Legislatures of the individual States.

M^r Broome 2^{ds}. On the Question, it pa.s.sed in the negative.

Mas. no. Con^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no.

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

On the question on the words, "to be chosen by the Nation^l Legislature"

it pa.s.sed unanimously in the affirmative

"For the term of seven years"--postponed nem. con. on motion of M^r Houston and Gov. Morris

"to carry into execution the nation^l laws"--agreed to nem. con.