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.