The Debates in the
Federal Convention of 1787
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. 1 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 have a share in the Revisionary power, and they will have an opportunity of
taking notice of these 2 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 3
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 can not be expected always to possess. The law of Nations
also will frequently come into question. Of this the Judges alone will have
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: It would be useful to the Legislature by the valuable 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
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. legislative encroachment. The Executive therefore 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
4 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 laws ought to have no hand in making them,
and 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 pushed or not. On the latter
supposition no check 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 5 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 deger 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 6
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 in the revision of the laws, had either no foundation 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 had 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 7 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
giving aid in preventing every improper law. Their 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 their own defence, or
at least to have an opportunity 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. 8 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
prepossion to mix itself with the exposition, the evil would be overbalanced by
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 8 Question on Mr. Wilson's motion
for joining the Judiciary in the Revision of laws it passed in the negative —
Mas. no. Cont. ay. N. J. not present. Pa. divd. Del. no. Md. ay. Va. ay. N. C.
no. S. C. no. Geo. divd. 9 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.
11 & then postponed, 'that the
Judges shd. be nominated by the Executive & such nominations become
appointments unless disagreed to by 2/3 of the 2d. branch of the Legislature,"
was now resumed.
Mr. MADISON stated as his reasons for
the motion. 1. 12 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. 12 that in case of
any flagrant partiality or error, in the nomination it might be fairly presumed
that 2/3 of the 2d. branch would join in putting a negative on it. 3.
12 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 their 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 sympathising 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
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
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 laid great stress on the
responsibility of the Executive 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 inconveniencies will proportionally prevail, if the appointments be 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. 13 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. 13
It had been said the Executive would be uninformed of characters. The reverse
was ye. truth. The Senate 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.
13 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 2/3 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
Mr. MADISON, observed that he was not
anxious that 2/3 should be necessary to disagree to a nomination. He had given
this form to his motion chiefly to vary it the more clearly from one which had
just 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 14
that the executive should nominate, & such nominations should become
appointments unless disagreed to by the Senate" Mas. ay. Ct. no. Pa. ay.
Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. 15
On 16 question for agreeing to the
clause as it stands by which the Judges are to be appointed by 16
2d. branch Mas. no. Ct. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay.
Geo. ay. 17
1. The words "the tenth Resolution"
are substituted for "Resoln. 10."
2. The word "those" is
substituted in the transcript for "these."
3. The word "the" is here
inserted in the transcript.
4. The word "passing" is
substituted in the transcript for "framing."
5. The word "that" is
substituted in the transcript for "which."
6. The word "proper" is omitted
in the transcript.
7. The word "that" is
substituted in the transcript for "which."
8. The word "the" is here
inserted in the transcript.
9. In the transcript the vote reads: "Connecticut,
Maryland, Virginia, aye — 3; Massachusetts, Delaware, North Carolina, South
Carolina, no — 4; Pennsylvania, Georgia, divided; New Jersey, not present."
10. This sentence has been changed in the
transcript to read as follows: "The tenth Resolution, giving the Executive
a qualified veto, requiring two — thirds of each branch of the Legislature
to overrule it was then agreed to nem. con."
11. The date "July 18" is
changed in the transcript to "on the eighteenth of July."
12. The figures "1," "2"
and "3" are changed to "first," "Secondly" and "Thirdly"
in the transcript.
13. The figures "1," "2"
and "3" are changed to "First," "Secondly" and "Thirdly"
in the transcript.
14. The words "now being" are
transposed to read "being now" in the transcript.
15. In the transcript the vote reads: "Massachusetts,
Pennsylvania, Virginia, aye — 3; Connecticut, Delaware, Maryland, North
Carolina, South Carolina, Georgia, no — 6."
16. The word "the" is here
inserted in the transcript.
17. In the transcript the vote reads: "Connecticut,
Delaware, Maryland, North Carolina, South Carolina, Georgia, aye — 6;
Massachusetts, Pennsylvania, Virginia, no — 3; so it passed in the