University of Virginia Library

Wednesday August 15. in Convention.

Art: VI. Sect. 11. Agreed to nem. con.

Art: VI. Sect 12. taken up.

Mr. Strong moved to amend the article so as to
read—"Each House shall possess the right of originating
all bills, except bills for raising money for
the purposes of revenue, or for appropriating the
same and for fixing the salaries of the officers of the
Govt. which shall originate in the House of Representatives;
but the Senate may propose or concur
with amendments as in other cases"

Col. Mason, 2ds. the motion. He was extremely
earnest to take this power from the Senate, who he
said could already sell the whole Country by means
of Treaties.

Mr. Ghorum urged the amendment as of great
importance. The Senate will first acquire the
habit of preparing money bills, and then the practice
will grow into an exclusive right of preparing
them.

Mr. Governr. Morris opposed it as unnecessary and
inconvenient.

Mr. Williamson, some think this restriction on the
Senate essential to liberty, others think it of no importance.
Why should not the former be indulged.

he was for an efficient and stable Govt.: but many
would not strengthen the Senate if not restricted in
the case of money bills. The friends of the Senate
would therefore lose more than they would gain by
refusing to gratify the other side. He moved to
postpone the subject till the powers of the Senate
should be gone over.

Mr. Rutlidge 2ds. the motion.

Mr. Mercer should hereafter be agst. returning to a
reconsideration of this section. He contended (alluding
to Mr. Mason's observations) that the Senate
ought not to have the power of treaties. This power
belonged to the Executive department; adding that
Treaties would not be final so as to alter the laws of
the land, till ratified by legislative authority. This
was the case of Treaties in Great Britain; particularly
the late Treaty of Com̃erce with France.

Col. Mason, did not say that a Treaty would repeal
a law; but that the Senate by means of treaty
might alienate territory &c, without legislative sanction.
The cessions of the British Islands in W. Indies
by Treaty alone were an example. If Spain should
possess herself of Georgia therefore the Senate might
by treaty dismember the Union. He wished the motion
to be decided now, that the friends of it might
know how to conduct themselves.

On the question for postponing Sect: 12. it passed
in the affirmative.

N. H. ay. Mass. ay. Ct. no. N. J. no. Pena. no.
Del: no. Maryd. no. Va. ay. N. C. ay. S. C. ay.
Geo. ay.

Mr. Madison moved that all acts before they become
laws should be submitted both to the Executive
and supreme Judiciary Departments, that if
either of these should object 2/3 of each House, if both
should object, 3/4 of each House, should be necessary
to overrule the objections and give to the acts the
force of law.[29]

Mr. Wilson seconds the motion

Mr. Pinkney opposed the interference of the Judges
in the Legislative business: it will involve them in
parties, and give a previous tincture to their opinions.

Mr. Mercer heartily approved the motion. It is an
axiom that the Judiciary ought to be separate from
the Legislative; but equally so that it ought to be
independent of that department. The true policy of
the axiom is that legislative usurpation and oppression
may be obviated. He disapproved of the Doctrine

that the Judges as expositors of the Constitution
should have authority to declare a law void.
He thought laws ought to be well and cautiously
made, and then to be uncontroulable.

Mr. Gerry. This motion comes to the same thing
with what has been already negatived.

Question on the motion of Mr. Madison

N. H. no. Mass. no. Ct. no. N. J. no. Pa. no.
Del. ay. Maryd. ay. Virga. ay. N. C. no. S. C. no.
Geo. no.

Mr. Govr. Morris regretted that something like the
proposed check could not be agreed to. He dwelt
on the importance of public Credit, and the difficulty
of supporting it without some strong barrier against
the instability of legislative Assemblies. He suggested
the idea of requiring three fourths of each
house to repeal laws where the President should not
concur. He had no great reliance on the revisionary
power as the Executive was now to be constituted
(elected by Congress.) The legislature will contrive
to soften down the President. He recited the history
of paper emissions, and the perseverance of the
legislative assemblies in repeating them, with all the
distressing effects of such measures before their eyes.
Were the National legislature formed, and a war was.
now to break out, this ruinous expedient would be
again resorted to, if not guarded against. The requiring
3/4 to repeal would, though not a compleat
remedy, prevent the hasty passage of laws, and the
frequency of those repeals which destroy faith in the
public, and which are among our greatest calamities.

Mr. Dickenson was strongly impressed with the
remark of Mr. Mercer as to the power of the Judges
to set aside the law. He thought no such power
ought to exist. He was at the same time at a loss
what expedient to substitute. The Justiciary of
Arragon he observed became by degrees the lawgiver.

Mr. Govr. Morris, suggested the expedient of an
absolute negative in the Executive. He could not
agree that the Judiciary which was part of the Executive,
should be bound to say that a direct violation
of the Constitution was law. A controul over the
legislature might have its inconveniences. But view
the danger on the other side. The most virtuous
Citizens will often as members of a legislative body
concur in measures which afterwards in their private
capacity they will be ashamed of. Encroachments
of the popular branch of the Government ought to be
guarded agst. The Ephori at Sparta became in the
end absolute. The Report of the Council of Censors
in Pennsylva. points out the many invasions of the
legislative department on the Executive numerous
as the latter[30] is, within the short term of seven years,
and in a State where a strong party is opposed to the
Constitution, and watching every occasion of turning
the public resentments agst. it. If the Executive
be overturned by the popular branch, as happened
in England, the tyranny of one man will ensue. In
Rome where the Aristocracy overturned the throne,

the consequence was different. He enlarged on the
tendency of the legislative Authority to usurp on the
Executive and wished the section to be postponed,
in order to consider of some more effectual check
than requiring 2/3 only to overrule the negative of the
Executive.

Mr. Sharman. Can one man be trusted better
than all the others if they all agree? This was
neither wise nor safe. He disapproved of Judges
meddling in politics and parties. We have gone far
enough in forming the negative as it now stands.

Mr. Carrol. when the negative to be overruled by
2/3 only was agreed to, the quorum was not fixed. He
remarked that as a majority was now to be the
quorum, 17. in the larger, and 8 in the smaller house
might carry points. The advantage that might be
taken of this seemed to call for greater impediments
to improper laws. He thought the controuling
power however of the Executive could not be well
decided, till it was seen how the formation of that
department would be finally regulated. He wished
the consideration of the matter to be postponed.

Mr. Ghorum saw no end to these difficulties and
postponements. Some could not agree to the form
of Government before the powers were defined.
Others could not agree to the powers till it was seen
how the Government was to be formed. He thought
a majority as large a quorum as was necessary. It
was the quorum almost every where fixt in the
U. States.

Mr. Wilson; after viewing the subject with all the

coolness and attention possible was most apprehensive
of a dissolution of the Govt. from the legislature
swallowing up all the other powers. He remarked
that the prejudices agst. the Executive resulted from
a misapplication of the adage that the parliament
was the palladium of liberty. Where the Executive
was really formidable, King and Tyrant, were naturally
associated in the minds of people; not legislature
and tyranny. But where the Executive was not formidable,
the two last were most properly associated.
After the destruction of the King in Great Britain,
a more pure and unmixed tyranny sprang up in the
parliament than had been exercised by the monarch.
He insisted that we had not guarded agst. the danger
on this side by a sufficient self-defensive power
either to the Executive or Judiciary department.

Mr. Rutlidge was strenuous agst. postponing; and
complained much of the tediousness of the proceedings.

Mr. Elseworth held the same language. We grow
more & more sceptical as we proceed. If we do not
decide soon, we shall be unable to come to any
decision.

The question for postponement passed in the
negative: Del: & Maryd. only being in the affirmative.

Mr. Williamson moved to change, "2/3 of each
House" into "3/4" as requisite to overrule the dissent
of the President. He saw no danger in this, and
preferred giving the power to the Presidt. alone, to
admitting the Judges into the business of legislation.

Mr. Wilson 2ds. the motion; referring to and repeating
the ideas of Mr. Carroll.

On this motion for 3/4, instead of two-thirds; it
passed in the affirmative

N. H. no. Mass. no. Ct. ay. N. J. no. Pena.
divd. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay.
Geo. no.

Mr. Madison, observing that if the negative of the
President was confined to bills; it would be evaded
by acts under the form and name of Resolutions,
votes &c, proposed that" or resolve" should be added
after "bill" in the beginning of sect 13. with an
exception as to votes of adjournment &c. After
a short and rather confused conversation on the
subject, the question was put & rejected, the States
being as follows,

N. H. no. Mass. ay. Ct. no. N. J. no. Pena.
no. Del. ay. Md. no. Va. no. N. C. ay. S. C. no.
Geo. no.

"Ten days (Sundays excepted)" instead of "seven"
were allowed to the President for returning bills with
his objections N. H. & Mas: only voting agst. it.

The 13 Sect: of Art. VI as amended was then
agreed to.

Adjourned.