The Debates in the
Federal Convention of 1787
IN COMMITTEE OF THE
The Question was resumed on motion of Mr. PINKNEY
2ded. by 2 WILSON,
"shall the blank for the number of the Executive be filled with a single
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 was 3
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 the
4 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.
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. Virg. ay. [Mr. R. & Mr. Blair no
— Docr. Mc.Cg. Mr. M. & Gen W. ay. Col. Mason being no, but not in
house, Mr. Wythe ay but gone home]. N. C. ay. S. C. ay. Georga ay. 5
First Clause of Proposition 8th. 6
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 go far enough. If the Legislative Exetv &
Judiciary ought to be distinct & independent. The Executive ought to have an
absolute negative. Without such a self-defense 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. Cont. no. N. Y. ay. Pa. ay. Del. no.
Maryd. no. Virga. no. N. C. ay. S. C. ay. Ga. ay. 7
Mr. GERRY'S proposition being now before
8 Committee, Mr. WILSON & Mr. HAMILTON
move that the last part of it [viz. "Wch. Sl. not be afterwds. passed
unless 9 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.
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 mischievous 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 10 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 overule 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 Legislative,
11 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 all these into 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 a rejection, not for a moment but forever, of the plan which shall
be proposed to them. Notwithstanding the oppressions & 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 the
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.
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 & to
12 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
On the question for striking out so as to give 13
Executive an absolute negative — Massts. no. Cont. no. N. Y. no. Pa. no.
Dl. no. Md. no. Va. no. N. C. no. S. C. no. Georga. no. 14
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 _____."
seconds the motion.
Mr. GERRY observed that a 15
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
On 13 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 16
check: 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. 17
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."
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 tomorrow, — where-upon
Wednesday (the day after)
18 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"
19 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
1. The year "1787" is here
inserted in the transcript.
2. The transcript inserts the word "Mr."
3. The word "was" is changed to "were"
in the transcript.
4. The word "the" is omitted in
5. In the transcript the vote reads: "Massachusetts,
Connecticut, Pennsylvania, Virginia, (Mr. Randolph and Mr. Blair, no; Doctor
McClurg, Mr. Madison, and General Washington, aye; Colonel Mason being no, but
not in the House, Mr. Wythe, aye, but gone home), North Carolina, South
Carolina, Georgia, aye — 7; New York, Delaware, Maryland, no — 3."
6. The phrase "the eighth Resolution"
is substituted in the transcript for "Proposition 8th."
7. In the transcript the vote reads: "Massachusetts,
New York, Pennsylvania, North Carolina, South Carolina, Georgia, aye — 6;
Connecticut, Delaware, Maryland, Virginia, no — 4."
8. The word "the" is here
inserted in the transcript.
9. The word "unless" is crossed
out in the transcript.
10. In the transcript the syllable "ten"
is stricken from the word "gotten."
11. In the transcript the syllable "tive"
is stricken from the word "Legislative" and "ture" is
written above it.
12. The word "to" is omitted in
13. The word "the" is here
inserted in the transcript.
14. In the transcript the vote reads "Massachusetts,
Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, Georgia, no — 10."
15. The word "the" is
substituted in the transcript for "a."
16. In the transcript the word "provisionary"
was erroneously used in place of "revisionary."
17. In the transcript this vote reads: "Massachusetts,
New York, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina,
Georgia, aye — 8; Connecticut, Maryland, no — 2."
18. The phrase "(the day after)"
is crossed out in the transcript.
19. The phrase "Resolved that a
National Judiciary be established" is italicized in the transcript.