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 constitutions 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 passed 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 passed 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 passed 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 pass 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they can be repealed by the Gen^l Legisl^{re} or be set aside by the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 unconstitutional law were displaced, and others
substituted, 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 passed 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 title 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 constitute 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
nobles 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 assemble 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 Mass^{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 multitude will be
uninformed. It is true they would be uninformed of what passed in the
Legislative Conclave, if the election were to be made there; but they
will not be uninformed of those great & illustrious 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
entitled 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 Constituents 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
passed 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 passed 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 passed 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.
"to appoint to offices in cases not otherwise provided for,"--agreed to
nem. con.
"to be ineligible a second time"--M^r Houston moved to strike out this
clause.
M^r Sherman 2^{ds} the motion.
M^r Gov^r Morris espoused the motion. The ineligibility proposed by the
clause as it stood tended to destroy the great motive to good behavior,
the hope of being rewarded by a re-appointment. It was saying to him,
make hay while the sun shines.
On the question for striking out, as moved by M^r Houston, it passed in
the affirmative
Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a no. N.
C. no. S. C. no. Geo. ay.
"For the term of 7 years," resumed.
M^r Broom was for a shorter term since the Executive Magistrate was now
to be re-eligible. Had he remained ineligible a 2^d time, he should have
preferred a longer term.
Doc^r M^cClurg moved[134] to strike out 7 years, and insert "during good
behavior." By striking out the words declaring him not re-eligible, he
was put into a situation that would keep him dependent forever on the
Legislature; and he conceived the independence of the Executive to be
equally essential with that of the Judiciary department.
[134] The probable object of this motion was merely to
enforce the argument against the re-eligibility of the
Executive magistrate by holding out a tenure during good
behaviour as the alternate for keeping him independent of
the legislature.--Note in Madison's handwriting.
M^r Gov^r Morris 2^{ded} the motion. He expressed great pleasure in
hearing it. This was the way to get a good Government. His fear that so
valuable an ingredient would not be attained had led him to take the
part he had done. He was indifferent how the Executive should be chosen,
provided he held his place by this tenure.