Debates in the Federal Convention of 1787
by James Madison
Monday, June 4
Mr. Wilson was in favor of the motion. It had been opposed by the gentleman from Virginia (Mr. Randolph); but the arguments used had not convinced him. He observed, that the objections of Mr. Randolph were levelled not so much against the measure itself, as against 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 were an important one, yet he would give it up rather than lose the whole. On examination, he could see no evidence of the alleged 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 thirteen States, though agreeing in scarce any other instance, agree in placing a single magistrate at the head of the government. 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 tranquillity, not less than the vigor, of the government, he thought, would be favored by it. Among three equal members, he foresaw nothing but uncontrolled, continued, and violent animosities; which would not only interrupt the public administration, but diffuse their poison through the other branches of government, through the States, and at length through the people at large. If the members were to be unequal in power, the principle of 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 and executive departments, questions have commonly many sides. Each member, therefore, might espouse a separate one, and 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 government. It was so, he admitted, and properly so; and he wished the same policy to prevail in the Federal Government. 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 Great Britain, 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. 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 would 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, — 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.
The first clause of the eighth Resolution, relating to a council of revision, was next taken into consideration.
Mr. Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check against 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 against the Constitution. This was done, too, with general approbation. It was quite foreign from the nature of their 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 seconded 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 goes far enough. If the Legislative, Executive, and Judiciary ought to be distinct and independent, the Executive ought to have an absolute negative. Without such a self-defence, 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 and Judiciary jointly an absolute negative.
On the question to postpone, in order to take Mr. Gerry’s proposition into consideration, it was agreed to, — Massachusetts, New York, Pennsylvania, North Carolina, South Carolina, Georgia, aye — 6; Connecticut, Delaware, Maryland, Virginia, no — 4.
Mr. Gerry’s proposition being now before the Committee, Mr. Wilson and Mr. Hamilton move, that the last part of it (viz. “which shall not be afterwards passed 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 Great Britain had not exerted his negative since the Revolution.
Mr. Gerry sees no necessity for so great a control over the Legislature, as the best men in the community would be comprised in the two branches of it.
Dr. Franklin 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 Pennsylvania. 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 Great Britain 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 enough would be got to influence and bribe the Legislature into a complete subjection to the will of the Executive.
Mr. Sherman was against 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 overrule 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 enough to resist the Legislature, unless backed by a certain part of the body itself. The King of Great Britain, with all his splendid attributes, would not be able to withstand the 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 Pennsylvania 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 and sometimes opposite interest. The salary, too, is now proposed to be fixed by the Constitution, or, if Doctor Franklin’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 complete 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 Great Britain. 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 Legislature, 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 control whatever. The two branches would produce a sufficient control 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 Doctor Franklin, 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 and influence, save himself the trouble and 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 government, 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 rejection, not for a moment, but forever, of the plan which shall be proposed to them? Notwithstanding the oppression and 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 government, 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 enough 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.
Doctor Franklin. A gentleman from South Carolina, (Mr. Butler) a day or two ago called our attention to the case of the United Netherlands. He wished the gentleman had been a little fuller, and had gone back to the original of that government. 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 and more oppressive, they were at length set aside. Still, however, there was a party for the Prince of Orange, which descended to his son; who excited insurrections, spilled a great deal of blood, murdered the De Witts, and got the powers re-vested in the Stadtholder. Afterwards another prince had power to excite insurrections, and make the Stadtholdership hereditary. And the present Stadtholder is ready to wade through 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 Pennsylvania, 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. Nobody knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a monarchy.
On the question for striking out, so as to give the Executive an absolute negative, — Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no — 10.
Mr. Butler moved that the Resolution be altered so as to read, “Resolved, that the national Executive have a power to suspend any legislative act for the term of —.”
Dr. Franklin seconded the motion.
Mr. Gerry observed, that the 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 ones.
On the question for giving this suspending power, all the States, to wit, Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, were, no.
On a question for enabling two–thirds of each branch of the Legislature to overrule the provisionary 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 control on the laws, unless overruled by two-thirds of each branch, — Massachusetts, New York, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye — 8; Connecticut, Maryland, no — 2.
It was moved by Mr. Wilson, seconded by Mr. Madison, that the following amendment be made to the last Resolution: after the words “national Executive,” to add “and 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. Wilson and Mr. Madison, that the same would be moved to-morrow; whereupon Wednesday was assigned to reconsider the amendment of Mr. Gerry.
It was then moved and seconded to proceed to the consideration of the ninth Resolution submitted by Mr. Randolph; when, on motion to agree to the first clause, namely, “Resolved, that a national Judiciary be established,” it passed in the affirmative, nem. con.
It was then moved and seconded, 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 Committee then rose, and the House adjourned.