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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Saturday July 21 in Convention |
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 | The writings of James Madison, |  |
Saturday July 21 in Convention
Mr. Williamson moved that the Electors of the
Executive should be paid out of the National Treasury
for the Service to be performed by them. Justice
required this: as it was a national service they
were to render. The motion was agreed to Nem.
Con.
Mr. Wilson moved as an amendment to Resoln. 10.
that the supreme Natl. Judiciary should be associated
with the Executive in the Revisionary power. This
proposition had been before made and failed: but he
was so confirmed by reflection in the opinion of its
utility, that he thought it incumbent on him to make
another effort: The Judiciary ought to have an
opportunity of remonstrating agst. projected encroachments
on the people as well as on themselves.
It had been said that the Judges, as expositors of the
Laws would have an opportunity of defending their
constitutional rights. There was weight in this observation;
but this power of the Judges did not go
far enough. Laws may be unjust, may be unwise,
may be dangerous, may be destructive; and yet
may not be so unconstitutional as to justify the
Judges in refusing to give them effect. Let them
will have an opportunity of taking notice of these
characters of a law, and of counteracting, by the
weight of their opinions the improper views of the
Legislature.—Mr. Madison 2ded. the motion
Mr. Ghorum did not see the advantage of employing
the Judges in this way. As Judges they are not
to be presumed to possess any peculiar knowledge
of the mere policy of public measures. Nor can it
be necessary as a security for their constitutional
rights. The Judges in England have no such additional
provision for their defence, yet their jurisdiction
is not invaded. He thought it would be best
to let the Executive alone be responsible, and at
most to authorize him to call on Judges for their
opinions.
Mr. Elseworth approved heartily of the motion.
The aid of the Judges will give more wisdom & firmness
to the Executive. They will possess a systematic
and accurate knowledge of the Laws, which the
Executive cannot be expected always to possess.
The Law of Nations also will frequently come into
question. Of this the Judges alone will have competent
information.
Mr. Madison considered the object of the motion
as of great importance to the meditated Constitution.
It would be useful to the Judiciary departmt.
by giving it an additional opportunity of defending
itself agst. Legislative encroachments: It would be
useful to the Executive, by inspiring additional confidence
& firmness in exerting the revisionary power:
assistance it would give in preserving a consistency,
conciseness, perspicuity & technical propriety in the
laws, qualities peculiarly necessary; & yet shamefully
wanting in our republican Codes. It would
moreover be useful to the Community at large as an
additional check agst. a pursuit of those unwise &
unjust measures which constituted so great a portion
of our calamities. If any solid objection could be
urged agst. the motion, it must be on the supposition
that it tended to give too much strength either to the
Executive or Judiciary. He did not think there was
the least ground for this apprehension. It was much
more to be apprehended that notwithstanding this
co-operation of the two departments, the Legislature
would still be an overmatch for them. Experience
in all the States had evinced a powerful tendency in
the Legislature to absorb all power into its vortex.
This was the real source of danger to the American
Constitutions; & suggested the necessity of giving
every defensive authority to the other departments
that was consistent with Republican principles.
Mr. Mason said he had always been a friend to this
provision. It would give a confidence to the Executive,
which he would not otherwise have, and without
which the Revisionary power would be of little
avail.
Mr. Gerry did not expect to see this point which
had undergone full discussion, again revived. The
object he conceived of the Revisionary power was
merely to secure the Executive department agst.
who will best know and be ready to defend his rights
ought alone to have the defence of them. The motion
was liable to strong objections. It was combining
& mixing together the Legislative & the other departments.
It was establishing an improper coalition
between the Executive & Judiciary departments.
It was making statesmen of the Judges; and setting
them up as the guardians of the Rights of the people.
He relied for his part on the Representatives of the
people as the guardians of their Rights & interests.
It was making the Expositors of the Laws, the Legislators
which ought never to be done. A better expedient
for correcting the laws, would be to appoint
as had been done in Pena., a person or persons of
proper skill, to draw bills for the Legislature.
Mr. Strong thought with Mr. Gerry that the power
of making ought to be kept distinct from that of
expounding, the laws. No maxim was better established.
The Judges in exercising the function of
expositors might be influenced by the part they had
taken in framing the laws.
Mr. Govr. Morris. Some check being necessary on
the Legislature, the question is in what hands it
should be lodged. On one side it was contended
that the Executive alone ought to exercise it. He
did not think that an Executive appointed for 6
years, and impeachable whilst in office wd be a very
effectual check. On the other side it was urged that
he ought to be reinforced by the Judiciary department.
Agst. this it was objected that Expositors of
arguments in favor of this had been drawn from
England. What weight was due to them might be
easily determined by an attention to facts. The
truth was that the Judges in England had a great
share in ye. Legislation. They are consulted in difficult
& doubtful cases. They may be & some of
them are members of the Legislature. They are or
may be members of the privy Council, and can there
advise the Executive as they will do with us if the
motion succeeds. The influence the English Judges
may have in the latter capacity in strengthening the
Executive check can not be ascertained, as the King
by his influence in a manner dictates the laws. There
is one difference in the two cases however which disconcerts
all reasoning from the British to our proposed
Constitution. The British Executive has so
great an interest in his prerogatives and such powerful
means of defending them that he will never yield
any part of them. The interest of our Executive is
so inconsiderable & so transitory, and his means of
defending it so feeble, that there is the justest ground
to fear his want of firmness in resisting incroachments.
He was extremely apprehensive that the
auxiliary firmness & weight of the Judiciary would
not supply the deficiency. He concurred in thinking
the public liberty in greater danger from Legislative
usurpations than from any other source. It
had been said that the Legislature ought to be relied
on as the proper Guardians of liberty. The answer
was short and conclusive. Either bad laws will be
will be wanted. On the former a strong check will
be necessary: and this is the proper supposition.
Emissions of paper money, largesses to the people—
a remission of debts and similar measures, will at
some times be popular, and will be pushed for that
reason. At other times such measures will coincide
with the interests of the Legislature themselves, &
that will be a reason not less cogent for pushing
them. It may be thought that the people will not
be deluded and misled in the latter case. But experience
teaches another lesson. The press is indeed
a great means of diminishing the evil, yet it is found
to be unable to prevent it altogether.
Mr. L. Martin, considered the association of the
Judges with the Executive as a dangerous innovation;
as well as one which could not produce the
particular advantage expected from it. A knowledge
of Mankind, and of Legislative affairs cannot be
presumed to belong in a higher degree to the Judges
than to the Legislature. And as to the Constitutionality
of laws, that point will come before the
Judges in their proper official character. In this character
they have a negative on the laws. Join them
with the Executive in the Revision and they will have
a double negative. It is necessary that the Supreme
Judiciary should have the confidence of the people.
This will soon be lost, if they are employed in the
task of remonstrating agst. popular measures of the
Legislature. Besides in what mode & proportion
are they to vote in the Council of Revision?
Mr. Madison could not discover in the proposed
association of the Judges with the Executive in the
Revisionary check on the Legislature any violation
of the maxim which requires the great departments
of power to be kept separate & distinct. On the
contrary he thought it an auxiliary precaution in
favor of the maxim. If a Constitutional discrimination
of the departments on paper were a sufficient
security to each agst. encroachments of the others, all
further provisions would indeed be superfluous. But
experience had taught us a distrust of that security;
and that it is necessary to introduce such a balance
of powers and interests as will guarantee the provisions
on paper. Instead therefore of contenting ourselves
with laying down the Theory in the Constitution
that each department ought to be separate &
distinct, it was proposed to add a defensive power
to each which should maintain the Theory in practice.
In so doing we did not blend the departments
together. We erected effectual barriers for keeping
them separate. The most regular example of this
theory was in the British Constitution. Yet it was
not only the practice there to admit the Judges to a
seat in the legislature, and in the Executive Councils,
and to submit to their previous examination all
laws of a certain description, but it was a part of
their Constitution that the Executive might negative
any law whatever; a part of their Constitution
which had been universally regarded as calculated
for the preservation of the whole. The objection
agst. a union of the Judiciary & Executive branches
or was not carried far enough. If such a Union was
an improper mixture of powers, or such a Judiciary
check on the laws, was inconsistent with the Theory
of a free Constitution, it was equally so to admit the
Executive to any participation in the making of
laws; and the revisionary plan ought to be discarded
altogether.
Col. Mason observed that the defence of the Executive
was not the sole object of the Revisionary
power. He expected even greater advantages from
it. Notwithstanding the precautions taken in the
Constitution of the Legislature, it would still so
much resemble that of the individual States, that it
must be expected frequently to pass unjust and pernicious
laws. This restraining power was therefore
essentially necessary. It would have the effect not
only of hindering the final passage of such laws; but
would discourage demagogues from attempting to
get them passed. It has been said (by Mr. L. Martin)
that if the Judges were joined in this check on the
laws, they would have a double negative, since in
their expository capacity of Judges they would have
one negative. He would reply that in this capacity
they could impede in one case only, the operation of
laws. They could declare an unconstitutional law
void. But with regard to every law however unjust
oppressive or pernicious, which did not come plainly
under this description, they would be under the
necessity as Judges to give it a free course. He
wished the further use to be made of the Judges, of
aid will be the more valuable as they are in the habit
and practice of considering laws in their true principles,
and in all their consequences.
Mr. Wilson. The separation of the departments
does not require that they should have separate
objects but that they should act separately tho' on
the same objects. It is necessary that the two
branches of the Legislature should be separate and
distinct, yet they are both to act precisely on the
same object.
Mr. Gerry had rather give the Executive an absolute
negative for its own defence than thus to blend
together the Judiciary & Executive departments. It
will bind them together in an offensive and defensive
alliance agst. the Legislature, and render the
latter unwilling to enter into a contest with them.
Mr. Govr. Morris was surprised that any defensive
provision for securing the effectual separation of the
departments should be considered as an improper
mixture of them. Suppose that the three powers,
were to be vested in three persons, by compact
among themselves; that one was to have the power
of making, another of executing, and a third of
judging, the laws. Would it not be very natural
for the two latter after having settled the partition
on paper, to observe, and would not candor oblige
the former to admit, that as a security agst. legislative
acts of the former which might easily be so
framed as to undermine the powers of the two others,
the two others ought to be armed with a veto for
of stating their objections agst. acts of encroachment?
And would any one pretend that such a right tended
to blend & confound powers that ought to be separately
exercised? As well might it be said that if
three neighbours had three distinct farms, a right in
each to defend his farm agst. his neighbours, tended
to blend the farms together.
Mr. Ghorum. All agree that a check on the Legislature
is necessary. But there are two objections
agst. admitting the Judges to share in it which no
observations on the other side seem to obviate, the
1st. is that the Judges ought to carry into the exposition
of the laws no prepossessions with regard to
them. 2d. that as the Judges will outnumber the
Executive, the revisionary check would be thrown
entirely out of the Executive hands, and instead of
enabling him to defend himself, would enable the
Judges to sacrifice him.
Mr. Wilson. The proposition is certainly not liable
to all the objections which have been urged agst. it.
According (to Mr. Gerry) it will unite the Executive
& Judiciary in an offensive & defensive alliance agst.
the Legislature. According to Mr. Ghorum it will
lead to a subversion of the Executive by the Judiciary
influence. To the first gentleman the answer
was obvious: that the joint weight of the two departments
was necessary to balance the single
weight of the Legislature. To the 1st. objection
stated by the other Gentleman it might be answered
that supposing the prepossession to mix itself with
the advantages promised by the expedient. To the
2d. objection, that such a rule of voting might be provided
in the detail as would guard agst. it.
Mr. Rutlidge thought the Judges of all men the
most unfit to be concerned in the revisionary Council.
The Judges ought never to give their opinion
on a law till it comes before them. He thought it
equally unnecessary. The Executive could advise
with the officers of State, as of war, finance &c. and
avail himself of their information & opinions.
On Question on Mr. Wilson's motion for joining the
Judiciary in the Revision of laws it passed in the
negative—
Mass. no. Cont. ay. N. J. not present. Pa. divd..
Del. no. Md. ay. Va. ay. N. C. no. S. C. no. Geo.
divd..
Resol. 10, giving the Ex a qualified veto, without
the amendt. was then agd. to nem. con.
The motion made by Mr. Madison July 18. & then
postponed, "that the Judges shd. be nominated by
the Executive & such nominations become appointments
unless disagreed to by ⅔ of the 2d. branch
of the Legislature," was now resumed.
Mr. Madison stated as his reasons for the motion.
1. that it secured the responsibility of the Executive
who would in general be more capable & likely
to select fit characters than the Legislature, or even
the 2d. b. of it, who might hide their selfish motives
under the number concerned in the appointment.
2 that in case of any flagrant partiality or error, in
of the 2d. branch would join in putting a negative on
it. 3. that as the 2d. b. was very differently constituted
when the appointment of the Judges was formerly
referred to it, and was now to be composed of
equal votes from all the States, the principle of compromise
which had prevailed in other instances required
in this that there shd. be a concurrence of two
authorities, in one of which the people, in the other
the States should be represented. The Executive
Magistrate wd. be considered as a national officer, acting
for and equally sympathizing with every part of
the U. States. If the 2d. branch alone should have
this power, the Judges might be appointed by a
minority of the people, tho' by a majority, of the
States, which could not be justified on any principle
as their proceedings were to relate to the people,
rather than to the States: and as it would moreover
throw the appointments entirely into the hands of
ye. Northern States, a perpetual ground of jealousy
& discontent would be furnished to the Southern
States.
Mr. Pinkney was for placing the appointmt. in the
2d. b. exclusively. The Executive will possess neither
the requisite knowledge of characters, nor confidence
of the people for so high a trust.
Mr. Randolph wd. have preferred the mode of appointmt.
proposed formerly by Mr. Ghorum, as adopted
in the Constitution of Massts. but thought the motion
depending so great an improvement of the clause as
it stands, that he anxiously wished it success. He
as a security for fit appointments. Appointments
by the Legislatures have generally resulted
from cabal, from personal regard, or some other
consideration than a title derived from the proper
qualifications. The same inconveniences will proportionally
prevail if the appointments be referred
to either branch of the Legislature or to any other
authority administered by a number of individuals.
Mr. Elseworth would prefer a negative in the Executive
on a nomination by the 2d. branch, the negative
to be overruled by a concurrence of 2/3 of the 2d.
b. to the mode proposed by the motion; but preferred
an absolute appointment by the 2d. branch to
either. The Executive will be regarded by the
people with a jealous eye. Every power for augmenting
unnecessarily his influence will be disliked.
As he will be stationary it was not to be supposed
he could have a better knowledge of characters. He
will be more open to caresses & intrigues than the
Senate. The right to supersede his nomination will
be ideal only. A nomination under such circumstances
will be equivalent to an appointment.
Mr. Govr. Morris supported the motion. 1. The
States in their corporate capacity will frequently
have an interest staked on the determination of the
Judges. As in the Senate the States are to vote the
Judges ought not to be appointed by the Senate.
Next to the impropriety of being Judge in one's own
cause, is the appointment of the Judge. 2. It had
been said the Executive would be uninformed of
will be so. They must take the character of candidates
from the flattering pictures drawn by their
friends. The Executive in the necessary intercourse
with every part of the U. S. required by the nature
of his administration, will or may have the best possible
information. 3. It had been said that a jealousy
would be entertained of the Executive. If the
Executive can be safely trusted with the command
of the army, there cannot surely be any reasonable
ground of Jealousy in the present case. He added
that if the Objections agst. an appointment of the
Executive by the Legislature, had the weight that
had been allowed there must be some weight in the
objection to an appointment of the Judges by the
Legislature or by any part of it.
Mr. Gerry. The appointment of the Judges like
every other part of the Constitution shd. be so modelled
as to give satisfaction both to the people and
to the States. The mode under consideration will
give satisfaction to neither. He could not conceive
that the Executive could be as well informed of
characters throughout the Union, as the Senate. It
appeared to him also a strong objection that ⅔ of
the Senate were required to reject a nomination of
the Executive. The Senate would be constituted
in the same manner as Congress. And the appointments
of Congress have been generally good.
Mr. Madison, observed that he was not anxious
that ⅔ should be necessary to disagree to a nomination.
He had given this form to his motion chiefly
been rejected. He was content to obviate the objection
last made, and accordingly so varied the
motion as to let a majority reject.
Col. Mason found it his duty to differ from his colleagues
in their opinions & reasonings on this subject.
Notwithstanding the form of the proposition
by which the appointment seemed to be divided
between the Executive & Senate, the appointment
was Substantially vested in the former alone. The
false complaisance which usually prevails in such
cases will prevent a disagreement to the first nominations.
He considered the appointment by the Executive
as a dangerous prerogative. It might even
give him an influence over the Judiciary department
itself. He did not think the difference of interest
between the Northern and Southern States could be
properly brought into this argument. It would
operate & require some precautions in the case of
regulating navigation, commerce & imposts; but
he could not see that it had any connection with the
Judiciary department.
On the question, the motion now being "that the
executive should nominate & such nominations
should become appointments unless disagreed to by
the Senate"
Mass. ay. Ct. no. Pa. ay. Del. no. Md. no. Va.
ay. N. C. no. S. C. no. Geo. no.
On question for agreeing to the clause as it stands
by which the Judges are to be appointed by the 2d.
branch
Mass. no. Ct. ay. Pa. no. Del. ay. Md. ay. Va.
no. N. C. ay. S. C. ay. Geo. ay.
Adjourned.
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