Debates in the Federal Convention of 1787
by James Madison
Monday, September 3
Mr. Gouverneur Morris moved to amend the Report concerning the respect to be paid to acts, records, &c., of one State in other States (see the first of September), by striking out, “judgments obtained in one State shall have in another;” and to insert the word “thereof,” after the word “effect.”
Colonel Mason favored the motion, particularly if the “effect” was to be restrained to judgments and judicial proceedings.
Mr. Wilson remarked, that if the Legislature were not allowed to declare the effect, the provision would amount to nothing more than what now takes place among all independent nations.
Doctor Johnson thought the amendment, as worded, would authorize the General Legislature to declare the effect of Legislative acts of one State in another State.
Mr. Randolph considered it as strengthening the general objection against the plan, that its definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going farther than the Report, which enables the Legislature to provide for the effect of judgments.
On the amendment, as moved by Mr. Gouverneur Morris, —
Massachusetts, Connecticut, New Jersey, Pennsylvania, North Carolina, South Carolina, aye, — 6; Maryland, Virginia, Georgia, no, — 3.
On motion of Mr. Madison, the words, “ought to,” were struck out, and “shall” inserted; and “shall,” between “Legislature” and “by general laws,” struck out, and “may” inserted, nem. con.
On the question to agree to the Report as amended, viz: “Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, and the Legislature may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof,” — it was agreed to without a count of the States.
The clause in the Report, “To establish uniform laws on the subject of bankruptcies,” being taken up, —
Mr. Sherman observed, that bankruptcies were in some cases punishable with death, by the laws of England; and he did not choose to grant a power by which that might be done here.
Mr. Gouverneur Morris said, this was an extensive and delicate subject. He would agree to it, because he saw no danger of abuse of the power by the Legislature of the United States.
On the question to agree to the clause, Connecticut alone was in the negative.
Mr. Pinckney moved to postpone the Report of the Committee of eleven (see the first of September) in order to take up the following:
“The members of each House shall be incapable of holding any office under the United States for which they, or any other for their benefit, receive any salary, fees, or emoluments of any kind; and the acceptance of such office shall vacate their seats respectively.”
He was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility. He considered the eligibility of members of the Legislature to the honorable offices of Government, as resembling the policy of the Romans, in making the temple of Virtue the road to the temple of Fame.
On this question, —
Pennsylvania, North Carolina, aye, — 2; New Hampshire, Massachusetts, Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, no, — 8.
Mr. King moved to insert the word “created,” before the word “during,” in the Report of the Committee. This, he said, would exclude the members of the first Legislature under the Constitution, as most of the offices would then be created.
Mr. Williamson seconded the motion. He did not see why members of the Legislature should be ineligible to vacancies happening during the term of their election.
Mr. Sherman was for entirely incapacitating members of the Legislature. He thought their eligibility to offices would give too much influence to the Executive. He said the incapacity ought at least to be extended to cases where salaries should be increased, as well as created, during the term of the member. He mentioned also the expedient by which the restriction could be evaded, to wit, an existing officer might be translated to an office created, and a member of the Legislature be then put into the office vacated.
Mr. Gouverneur Morris contended that the eligibility of members to office would lessen the influence of the Executive. If they cannot be appointed themselves, the Executive will appoint their relations and friends, retaining the service and votes of the members for his purposes, in the Legislature. Whereas, the appointment of the members deprives him of such an advantage.
Mr. Gerry thought the eligibility of members would have the effect of opening batteries against good officers, in order to drive them out and make way for members of the Legislature.
Mr. Gorham was in favor of the amendment. Without it, we go further than has been done in any of the States, or indeed any other country. The experience of the State Governments, where there was no such ineligibility, proved that it was not necessary; on the contrary, that the eligibility was among the inducements for fit men to enter into the Legislative service.
Mr. Randolph was inflexibly fixed against inviting men into the Legislature by the prospect of being appointed to offices.
Mr. Baldwin remarked, that the example of the States was not applicable. The Legislatures there are so numerous, that an exclusion of their members would not leave proper men for offices. The case would be otherwise in the General Government.
Colonel Mason. Instead of excluding merit, the ineligibility will keep out corruption, by excluding office hunters.
Mr. Wilson considered the exclusion of members of the Legislature as increasing the influence of the Executive, as observed by Mr. Gouverneur Morris; at the same time that it would diminish the general energy of the Government. He said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction.
Mr. Pinckney. The first Legislature will be composed of the ablest men to be found. The States will select such to put the Government into operation. Should the Report of the Committee, or even the amendment be agreed to, the great offices, even those of the Judiciary department, which are to continue for life, must be filled, while those most capable of filling them will be under a disqualification.
On the question on Mr. King’s motion, —
New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, aye, — 5; Connecticut, New Jersey, Maryland, South Carolina, Georgia, no, — 5.
The amendment being thus lost, by the equal division of the States, Mr. Williamson moved to insert the words “created, or the emoluments whereof shall have been increased,” before the word “during,” in the Report of the Committee.
Mr. King seconded the motion, and on the question, —
New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, aye, — 5; Connecticut, New Jersey, Maryland, South Carolina, no, — 4; Georgia, divided.
The last clause, rendering a seat in the Legislature, and an office, incompatible, was agreed to, nem. con.
The Report, as amended and agreed to, is as follows: —
“The members of each House shall be ineligible to any civil office under the authority of the United States, created, or the emoluments whereof shall have been increased, during the time for which they shall respectively be elected. And no person holding any office under the United States shall be a member of either House during his continuance in office.”