The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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Tuesday July 17. in Convention. |
 | The writings of James Madison, |  |
Tuesday July 17. in Convention.
Mr. Governr. Morris, moved to reconsider the whole
Resolution agreed to yesterday concerning the constitution
of the 2 branches of the Legislature. His
object was to bring the House to a consideration in
the abstract of the powers necessary to be vested in
the general Government. It had been said, Let us
know how the Govt. is to be modelled, and then we
can determine what powers can be properly given to
it. He thought the most eligible course was, first
modify the Governt. as that it might be justly & properly
enabled to administer them. He feared if we
proceeded to a consideration of the powers, whilst
the vote of yesterday including an equality of the
States in the 2d. branch, remained in force, a reference
to it, either mental or expressed, would mix itself
with the merits of every question concerning the
powers.—This motion was not seconded. (It was
probably approved by several members who either
despaired of success, or were apprehensive that the
attempt would inflame the jealousies of the smaller
States.)
The 6th. Resoln. in the Report of the Come. of the
Whole relating to the powers, which had been postponed
in order to consider the 7 & 8th. relating to
the constitution of the Natl. Legislature, was now
resumed.
Mr. Sherman observed that it would be difficult to
draw the line between the powers of the Genl. Legislature,
and those to be left with the States; that he
did not like the definition contained in the Resolution,
and proposed in place of the words "individual legislation"
line 4. 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 Govt. of such States only,
and wherein the general welfare of the U. States is
not concerned."
Mr. Wilson 2ded. the amendment as better expressing
the general principle.
Mr. Govr. 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.
Mr. 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.
Mr. Govr. 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 Genl. Govt. should recur to quotas & requisitions,
which are subversive of the idea of Govt.
Mr. 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 Mr. Sherman's motion it passed in
the negative
Mas. no. Cont. ay. N. J. no. Pa. no. Del. no.
Md. ay. Va. no. N. C. no. S. C. no. Geo. no.
Mr. Bedford moved that the 2d. 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."
Mr. Govr. Morris 2ds. the motion
Mr. 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.
Mr. 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 Mr. Bedford's motion it
passed in the affirmative.
Mas. ay. Cont. no. N. J. ay. Pa. ay. Del. ay.
Md ay. Va. no. N. C. ay. S. C. no. Geo. no.
On the sentence as amended, it passed in the
affirmative.
Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. ay.
Md. ay. Va. 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 ye. Union."
Mr. Govr. Morris opposed this power as likely to be
terrible to the States, and not necessary, if sufficient
Legislative authority should be given to the Genl.
Government.
Mr. 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.
Mr. L. Martin considered the powèr as improper &
up to the Genl. Legislature before they shall be permitted
to operate?
Mr. Madison, considered the negative on the laws
of the States as essential to the efficacy & security
of the Genl. Govt. The necessity of a general Govt.
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
Genl. Legislre. 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 dependt.
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
ignorance or a partiality to one particular part of ye.
empire; but we have not the same reason to fear such
misapplications in our System. As to the sending
all laws up to the Natl. 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.
Mr. Govr. 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 departmt. and if that security
should fail; may be repealed by a Nationl. law.
Mr. 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.
Mr. 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. Ct. no. N. J. no. Pa. no. Del. no.
Md. no. Va. ay. N. C. ay. S. C. no. Geo. no.
Mr. 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
notwithstanding" which was agreed to nem:
con:
9th. Resol: "that Natl. Executive consist of a
single person," Agd. to nem. con.
"To be chosen by the National Legisl:"
Mr. Governr. Morris was pointedly agst. 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 Cont. 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."
Mr. 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
to constitute an election.
Mr. Wilson. Two arguments have been urged
agst. 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
2d. argt. 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 Massts.,
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 agst. an absolute election by
the Legislre. 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.
Mr. Pinkney did not expect this question would
again have been brought forward: An Election by
the people being liable to the most obvious & striking
men. The most populous States by combining
in favor of the same individual will be able to
carry their points. The Natl. 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.
Mr. Govr. 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 Govr. 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 Nat1. 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
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 wch. 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.
Mr. Wilson, could not see the contrariety stated (by
Col. Mason.) The Legislre. might deserve confidence
which were to affect them & yr. Constituents precisely
alike confidence was due. In others jealousy
was warranted. The appointment to great offices,
where the Legislre. 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.
Mr. Williamson, conceived that there was the same
difference between an election in this case, by the
people and by the legislature, as between an appt. 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 Virga. however. Her slaves will have no
suffrage. As the Salary of the Executive will be
fixed, and he will not be eligible a 2d. 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. Cont. no. N. J. no. Pa. ay. Del. no.
Md. no. Va. no. N. C. no. S. C. no. Geo. no.
Mr. L. Martin moved that the Executive be chosen
by Electors appointed by the several Legislatures
of the individual States.
Mr. Broome 2ds. On the Question, it passed in the
negative
Mas. no. Cont. no. N. J. no. Pa. no. Del. ay.
Md. ay. Va. no. N. C. no. S. C. no. Geo. no.
On the question on the words, "to be ehosen by
the Nationl. Legislature" it passed unanimously in
the affirmative
"For the term of seven years "—postponed nem.
con. on motion of Mr. Houston and Gov. Morris
"to carry into execution the nationl. 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"—Mr. Houston
moved to strike out this clause.
Mr. Sherman 2ds. the motion.
Mr. Govr. 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 Mr.
Houston, it passed in the affirmative
Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. no.
Md. ay. Va. no. N. C. no. S. C. no. Geo, ay.
"For the term of 7 years," resumed.
Mr. Broom was for a shorter term since the Executive
Magistrate was now to be re-eligible. Had he
remained ineligible a 2d. time, he should have preferred
a longer term.
Docr. McClurg moved[128]
to strike out 7 years, and
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.
Mr. Govr. Morris 2ded. 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.
Mr. Broome highly approved the motion. It obviated
all his difficulties
Mr. Sherman considered such a tenure as by no
means safe or admissible. As the Executive Magistrate
is now re-eligible, he will be on good behavior
as far as will be necessary. If he behaves well he
will be continued; if otherwise, displaced, on a
succeeding election.
Mr. Madison.[129]
If it be essential to the preservation
of liberty that the Legisl: Execut: & Judiciary
powers be separate, it is essential to a maintenance
of the separation, that they should be independent of
of the Legislure, if dependent on the pleasure of
that branch for a re-appointment. Why was it
determined that the Judges should not hold their
places by such a tenure? Because they might be
tempted to cultivate the Legislature, by an undue
complaisance, and thus render the Legislature the
virtual expositor, as well as the maker of the laws. In
like manner a dependence of the Executive on the
Legislature, would render it the Executor as well as
the maker of laws; & then according to the observation
of Montesquieu, tyrannical laws may be made
that they may be executed in a tyrannical manner.
There was an analogy between the Executive &
Judiciary departments in several respects. The latter
executed the laws in certain cases as the former
did in others. The former expounded & applied
them for certain purposes, as the latter did for
others. The difference between them seemed to
consist chiefly in two circumstances—1. the collective
interest & security were much more in the power
belonging to the Executive than to the Judiciary
department. 2. in the administration of the former
much greater latitude is left to opinion and discretion
than in the administration of the latter. But
if the 2d. consideration proves that it will be more
difficult to establish a rule sufficiently precise for
trying the Execut: than the Judges, & forms an objection
to the same tenure of office, both considerations
prove that it might be more dangerous to suffer
a Union between the Executive & Legisl: powers,
He conceived it to be absolutely necessary to a well
constituted Republic that the two first shd. be kept
distinct & independent of each other. Whether the
plan proposed by the motion was a proper one was
another question, as it depended on the practicability
of instituting a tribunal for impeachmts. as certain &
as adequate in the one case as in the other. On the
other hand, respect for the mover entitled his proposition
to a fair hearing & discussion, until a less
objectionable expedient should be applied for guarding
agst. a dangerous union of the Legislative & Executive
departments.
Col. Mason. This motion was made some time ago
& negatived by a very large majority. He trusted
that it wd. be again negatived. It wd. be impossible
to define the misbehaviour in such a manner as to
subject it to a proper trial; and perhaps still more
impossible to compel so high an offender holding his
office by such a tenure to submit to a trial. He considered
an Executive during good behavior as a
softer name only for an Executive for life. And that
the next would be an easy step to hereditary Monarchy.
If the motion should finally succeed, he
might himself live to see such a Revolution. If he
did not it was probable his children or grand children
would. He trusted there were few men in that
House who wished for it. No state he was sure had
so far revolted from Republican principles as to have
the least bias in its favor.
Mr. Madison, was not apprehensive of being thought
object with him was to prevent its introduction.
Experience had proved a tendency in our governments
to throw all power into the Legislative vortex.
The Executives of the States are in general little
more than Cyphers; the legislatures omnipotent.
lf no effectual check be devised for restraining the
instability & encroachments of the latter, a revolution
of some kind or other would be inevitable. The
preservation of Republican Govt. therefore required
some expedient for the purpose, but required evidently
at the same time that in devising it, the
genuine principles of that form should be kept in
view.
Mr. Govr. Morris was as little a friend to monarchy
as any gentleman. He concurred in the opinion that
the way to keep out monarchical Govt. was to establish
such a Repub. Govt. as wd. make the people happy
and prevent a desire of change.
Docr. McClurg was not so much afraid of the shadow
of monarchy as to be unwilling to approach it; nor
so wedded to Republican Govt. as not to be sensible
of the tyrannies that had been & may be exercised
under that form. It was an essential object with
him to make the Executive independent of the Legislature;
and the only mode left for effecting it, after
the vote destroying his ineligibility a second time,
was to appoint him during good behavior.
On the question for inserting "during good behavior"
in place of '7 years (with a re-eligibility)'
it passed in the negative,
Mas. no. Ct. no. N. J. ay. Pa. ay. Del. ay.
Md. no. Va. ay. N. C. no. S. C. no. Geo. no.[130]
On the motion "to strike out seven years" it
passed in the negative,
Mas. ay. Ct. no. N. J. no. Pa. ay. Del. ay.
Md. no. Va. no. N. C. ay. S. C. no. Geo. no.[131]
It was now unanimously agreed that the vote
which had struck out the words "to be ineligible a
second time" should be reconsidered to-morrow.
Adjd.
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.
The view here taken of the subject was meant to aid in parrying
the animadversions likely to fall on the motion of Dr. Mc. Clurg, for
whom J. M. had a particular regard. The Docr. though possessing
talents of the highest order was modest & unaccustomed to exert them
in public debate.—Note in Madison's handwriting.
(This vote is not considered as any certain index of opinion, as a
number in the affirmative probably had it chiefly in view to alarm
those attached to a dependence of the Executive on the Legislature, &
thereby facilitate some final arrangement of a contrary tendency.
The avowed friends of an Executive, during good behaviour were
not more than three or four, nor is it certain they would finally have
adhered to such a tenure, an independence of the three great departments
of each other, as far as possible, and the responsibility of all to
the will of the community seemed to be generally admitted as the
true basis of a well constructed government.)—Note in Madison's
hand, except from the words "nor is it certain" &c. which is in the
hand of his wife's nephew, John C. Payne
(There was no debate on this motion. The apparent object of
many in the affirmative was to secure the re-eligibility by shortening
the term, and of many in the negative to embarrass the plan of referring
the appointment and dependence of the Executive to the Legislature.)
—Note in Madison's hand.
| The writings of James Madison, | |