University of Virginia Library

Monday June 4. In Committee of the Whole

The Question was resumed on motion of Mr. Pinkney,
2ded. by Mr. Wilson, "shall the blank for the
number of the Executive be filled with a single person?"

Mr. Wilson was in favor of the motion. It had
been opposed by the gentleman from Virga. (Mr. Randolph)
but the arguments used had not convinced
him. He observed that the objections of Mr. R.
were levelled not so much agst. the measure itself,
as agst. 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 Governt. 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 tranquility not
less than the vigor of the Govt. 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 Govt., 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
departmts. questions have commonly many sides.
Each member therefore might espouse a separate
one & no two agree.[55]

Mr. Sherman. This matter is of great importance
and ought to be well considered before it is determined.
Mr. Wilson he said had observed that in
each State a single magistrate was placed at the
head of the Govt. It was so he admitted, and properly
so, and he wished the same policy to prevail in
the federal Govt. 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.

Mr. Williamson asks Mr. Wilson whether he means
to annex a Council.

Mr. Wilson means to have no Council, which
oftener serves to cover, than prevent malpractices.

Mr. Gerry was at a loss to discover the policy of
three members for the Executive. It wd. 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 Massts. ay. Cont. ay. N. Y. no. Pena.
ay. Del. no. Maryd. no. Virga. ay. (Mr. R. & Mr.
Blair no—Docr McCg. Mr M. & Gen. W. ay. Col.
Mason being no, but not in the house, Mr. Wythe ay
but gone home). N. C. ay. S. C. ay. Georga. ay.

First Clause of Proposition 8th. relating to a Council
of Revision taken into consideration.

Mr. Gerry doubts whether the Judiciary ought to
form a part of it, as they will have a sufficient check
agst. 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 agst.
the Constitution. This was done too with general
approbation. It was quite foreign from the nature
of ye. 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."

Mr. 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.

Mr. 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 Mr.
Gerry's proposition into consideration it was agreed
to, Masss. ay. Cort. no. N. Y. ay. Pa. ay. Del. no.
Maryd. no. Virga. no. N. C ay. S. C. ay. Ga. ay.

Mr. Gerry's proposition being now before Committee,
Mr. Wilson & Mr. Hamilton move that the
last part of it (viz. "wch. S1. not be afterwds. 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.

Mr. 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.

Docr. 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 Pena. 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.

Mr. Sherman was agst. 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.

Mr. 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
ye. 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.

Mr. 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 Pena. 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 Dr. 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.

Mr. 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.

Mr. 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 Dr. 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 Mr. 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 Govt. 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 Governmt.
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.

Docr. Franklin. A Gentleman from S. C., (Mr.
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 Govt. 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 Stadthder. 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 Pensa. 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,—Massts. no. Cont.
no. N. Y. no. Pa. no. Del. no. Md. no. Va. no.
N. C. no. S. C. no. Georga. no.

Mr. Butler moved that the Resoln. be altered so as
to read—"Resolved that the National Executive
have a power to suspend any Legislative act for the
term of———."

Doctr. Franklin seconds the motion.

Mr. 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 Massts. Cont. N. Y. Pa. Del.
Maryd. Virga. N. C. S. C. Georgia, were No.

On a question for enabling two thirds of each

branch of the Legislature to overrule the revisionary
cheek, it passed in the affirmative sub silentio; and
was inserted in the blank of Mr. Gerry's motion.

On the question on Mr. 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; Massts. ay. Cont. no. N. Y. ay.
Pa. ay. Del. ay. Maryd. no. Va. ay. N. C. ay. S.
C. ay. Geo. ay.

It was moved by Mr. Wilson 2ded. by Mr. 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."[56]

An Objection of order being taken by Mr. Hamilton
to the introduction of the last amendment at
this time, notice was given by Mr. W. & Mr. M., that
the same wd. be moved to-morrow,—whereupon Wednesday
(the day after) was assigned to reconsider
the amendment of Mr. Gerry.

It was then moved & 2ded. to proceed to the consideration
of the 9th. resolution submitted by Mr.
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 & 2ded. 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 Comme. then rose and the House

Adjourned.