MONDAY JUNE 4. IN COMMITTEE OF THE WHOLE

The Question was resumed on motion of M^r Pinkney, 2^{ded} by M^r

Wilson, "shall the blank for the number of the Executive be filled with

a single person?"

M^r Wilson was in favor of the motion. It had been opposed by the

gentleman from Virg^a (Mr. Randolph) but the arguments used had not

convinced him. He observed that the objections of M^r R. were levelled

not so much ag^st the measure itself, as ag^{st} its unpopularity. If he

could suppose that it would occasion a rejection of the plan of which it

should form a part, though the part were an important one, yet he would

give it up rather than lose the whole. On examination he could see no

evidence of the alledged antipathy of the people. On the contrary he was

persuaded that it does not exist. All know that a single magistrate is

not a King. One fact has great weight with him. All the 13 States tho

agreeing in scarce any other instance, agree in placing a single

magistrate at the head of the Govern^t. The idea of three heads has

taken place in none. The degree of power is indeed different; but there

are no co-ordinate heads. In addition to his former reasons for

preferring a Unity, he would mention another. The _tranquillity_ not

less than the vigor of the Gov^t he thought would be favored by it.

Among three equal members, he foresaw nothing but uncontrouled,

continued, & violent animosities; which would not only interrupt the

public administration; but diffuse their poison thro' the other branches

of Gov^t, thro' the States, and at length thro' the people at large. If

the members were to be unequal in power the principle of opposition to

the Unity was given up. If equal, the making them an odd number would

not be a remedy. In Courts of Justice there are two sides only to a

question. In the Legislative & Executive departm^{ts} questions have

commonly many sides. Each member therefore might espouse a separate one

& no two agree.[62]

[62] According to Pierce, King followed Wilson:

"Mr. King was of opinion that the Judicial ought not to join

in the negative of a Law, because the Judges will have the

expounding of those Laws when they come before them; and

they will no doubt stop the operation of such as shall

appear repugnant to the Constitution."--Pierce's Notes, _Am.

Hist. Rev._, iii., 322.

M^r Sherman. This matter is of great importance and ought to be well

considered before it is determined. M^r Wilson he said had observed that

in each State a single magistrate was placed at the head of the Gov^t.

It was so he admitted, and properly so, and he wished the same policy to

prevail in the federal Gov^t. But then it should be also remarked that

in all the States there was a Council of advice, without which the first

magistrate could not act. A council he thought necessary to make the

establishment acceptable to the people. Even in G. B. the King has a

Council; and though he appoints it himself, its advice has its weight

with him, and attracts the Confidence of the people.

M^r Williamson asks M^r Wilson whether he means to annex a Council.

M^r Wilson means to have no Council, which oftener serves to cover, than

prevent malpractices.

M^r Gerry was at a loss to discover the policy of three members for the

Executive. It w^d be extremely inconvenient in many instances,

particularly in military matters, whether relating to the militia, an

army, or a navy. It would be a general with three heads.

On the question for a single Executive it was agreed to Mass^{ts} ay.

Con^t ay. N. Y. no. Pen^a ay. Del. no. Mary^d no. Virg^a ay. (M^r R. &

M^r Blair no--Doc^r McC^g M^r M. & Gen. W. ay. Col. Mason being no, but

not in the house, M^r Wythe ay. but gone home). N. C. ay. S. C. ay.

Georg^a ay.

First Clause of Proposition 8^{th} relating _to a Council of Revision_

taken into consideration.

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 Constitutionality. In some States the Judges had

actually set aside laws as being ag^{st} the Constitution. 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 passed 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 participated 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, Mass^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} passed "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 passed 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 constituted 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 Constitution, 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 Constitution 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 passed 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 assent 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 constituting 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 Stadtholdership hereditary. And the present Stadth^{der} is

ready to wade thro' a bloody civil war to the establishment of a

monarchy. Col. Mason had mentioned the circumstance 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,--Mass^{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

Mass^{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 passed 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; Mass^{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: "Dickinson 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. Constitution 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 assigned 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 passed 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 passed in the affirmative.

The Journal of the Debates in the Convention which Framed the Constitution of the United States, May-September 1787. Volume 1 · 第 35 / 114 题