by James Madison

In Convention, — Mr. GOUVERNEUR MORRIS moved to reconsider the whole Resolution agreed to yesterday concerning the constitution of the two branches of the Legislature. His object was to bring the House to a consideration, in the abstract, of the powers necessary to be vested in the General Government. It had been said, Let us know how the government is to be modelled, and then we can determine what powers can be properly given to it. He thought the most eligible course was, first to determine on the necessary powers, and then so to modify the Government, as that it might be justly and properly enabled to administer them. He feared, if we proceeded to a consideration of the powers, whilst the vote of yesterday, including an equality of the States in the second branch, remained in force, a reference to it, either mental or expressed, would mix itself with the merits of every question concerning the powers. This motion was not seconded. [It was probably approved by several members who either despaired of success, or were apprehensive that the attempt would inflame the jealousies of the smaller States.]

The sixth Resolution in the Report of the Committee of the Whole, relating to the powers, which had been postponed in order to consider the seventh and eight, relating to the constitution, of the National Legislature, was now resumed.

Mr. SHERMAN observed, that it would be difficult to draw the line between the powers of the General Legislature, and those to be left with the States; that he did not like the definition contained in the Resolution; and proposed, in its place, to the words “individual legislation,” inclusive, to insert “to make laws binding on the people of the United States in all cases which may concern the common interests of the Union; but not to interfere with the government of the individual States in any matters of internal police which respect the government of such States only, and wherein the general welfare of the United States is not concerned.”

Mr. WILSON seconded the amendment, as better expressing the general principle.

Mr. GOUVERNEUR MORRIS opposed it. The internal police, as it would be called and understood by the States, ought to be infringed in many cases, as in the case of paper-money, and other tricks by which citizens of other States may be affected.

Mr. SHERMAN, in explanation of his idea, read an enumeration of powers, including the power of levying taxes on trade, but not the power of direct taxation.

Mr. GOUVERNEUR MORRIS remarked the omission, and inferred, that, for the deficiencies of taxes on consumption, it must have been the meaning of Mr. SHERMAN that the General Government should recur to quotas and requisitions, which are subversive of the idea of government.

Mr. SHERMAN acknowledged that his enumeration did not include direct taxation. Some provision, he supposed, must be made for supplying the deficiency of other taxation, but he had not formed any.

On the question on Mr. SHERMAN’S motion, it passed in the negative, — Connecticut, Maryland, aye — 2; Massachusetts, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, no — 8.

Mr. BEDFORD moved that the second member of the sixth Resolution be so altered as to read, “and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are severally incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”

Mr. GOUVERNEUR MORRIS seconds the motion.

Mr. RANDOLPH. This is a formidable idea, indeed. It involves the power of violating all the laws and Constitutions of the States, and of intermeddling with their police. The last member of the sentence is also superfluous, being included in the first.

Mr. BEDFORD. It is not more extensive or formidable than the clause as it stands; no State being separately competent to legislate for the general interests of the Union.

On the question for agreeing to Mr. BEDFORD’S motion, it passed in the affirmative, — Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, aye — 6; Connecticut, Virginia, South Carolina, Georgia, no — 4.

On the sentence as amended, it passed in the affirmative, — Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye — 8; South Carolina, Georgia, no — 2.

The next clause, “To negative all laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union, or any treaties subsisting under the authority of the Union,” was then taken up.

Mr. GOUVERNEUR MORRIS opposed this power as likely to be terrible to the States, and not necessary if sufficient Legislative authority should be given to the General Government.

Mr. SHERMAN thought it unnecessary; as the Courts of the States would not consider as valid any law contravening the authority of the Union, and which the Legislature would wish to be negatived.

Mr. L. MARTIN considered the power as improper and inadmissible. Shall all the laws of the States be sent up to the General Legislature before they shall be permitted to operate?

Mr. MADISON considered the negative on the laws of the States as essential to the efficacy and security of the General Government. The necessity of a General Government proceeds from the propensity of the States to pursue their particular interests, in opposition to the general interest. This propensity will continue to disturb the system unless effectually controlled. Nothing short of a negative on their laws will control it. They will pass laws which will accomplish their injurious objects before they can be repealed by the General Legislature, or set aside by the National tribunals. Confidence cannot be put in the state tribunals as guardians of the National authority and interests. In all the States these are more or less dependent on the Legislatures. In Georgia they are appointed annually by the Legislature. In Rhode Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature, who would be the willing instruments of the wicked and arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild and certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British system. Nothing could maintain the harmony and subordination of the various parts of the Empire, but the prerogative by which the Crown stifles in the birth every act of every part tending to discord or encroachment. It is true the prerogative is sometimes misapplied, through ignorance or partiality to one particular part of the Empire; but we have not the same reason to fear such misapplications in our system. As to the sending all laws up to the National Legislature, that might be rendered unnecessary by some emanation of the power into the States, so far at least as to give a temporary effect to laws of immediate necessity.

Mr. GOUVERNEUR MORRIS was more and more opposed to the negative. The proposal of it would disgust all the States. A law that ought to be negatived, will be set aside in the Judiciary department; and if that security should fail, may be repealed by a National law.

Mr. SHERMAN. Such a power involves a wrong principle, to wit, that a law of a State contrary to the Articles of the Union would, if not negatived, be valid and operative.

Mr. PINCKNEY urged the necessity of the negative.

On the question for agreeing to the power of negativing laws of States, &c. it passed in the negative, — Massachusetts, Virginia, North Carolina, aye — 3; Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, no — 7.

Mr. L. MARTIN moved the following resolution, “That the Legislative acts of the United States made by virtue and in pursuance of the Articles of Union, and all treaties made and ratified under the authority of the United States, shall be the supreme law of the respective States, as far as those acts or treaties shall relate to the said States, or their citizens and inhabitants; and that the Judiciaries of the several States shall be bound thereby in their decisions, any thing in the respective laws of the individual States to the contrary notwithstanding;” which was agreed to, nem. con.

The ninth Resolution being taken up, the first clause, “That a National Executive be instituted, to consist of a single person,” was agreed to, nem. con.

The next clause, “to be chosen by the National Legislature,” being considered, —

Mr. GOUVERNEUR MORRIS was pointedly against his being so chosen. He will be the mere creature of the Legislature, if appointed and impeachable by that body. He ought to be elected by the people at large — by the freeholders of the country. That difficulties attend this mode, he admits. But they have been found superable in New York and in Connecticut, and would, he believed, be found so in the case of an Executive for the United States. If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment. He moved to strike out “National Legislature,” and insert “citizens of the United States.”

Mr. SHERMAN thought that the sense of the nation would be better expressed by the Legislature, than by the people at large. The latter will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man. They will generally vote for some man in their own State, and the largest State will have the best chance for the appointment. If the choice be made by the Legislature, a majority of voices may be made necessary to constitute an election.

Mr. WILSON. Two arguments have been urged against an election of the Executive magistrate by the people. The first is, the example of Poland, where an election of the supreme magistrate is attended with the most dangerous commotions. The cases, he observed, were totally dissimilar. The Polish nobles have resources and dependants which enable them to appear in force, and to threaten the Republic as well as each other. In the next place, the electors all assemble at one place; which would not be the case with us. The second argument is, that a majority of the people would never concur. It might be answered, that the concurrence of a majority of the people is not a necessary principle of election, nor required as such in any of the States. But allowing the objection all its force, it may be obviated by the expedient used in Massachusetts, where the Legislature, by a majority of voices, decide in case a majority of the people do not concur in favor of one of the candidates. This would restrain the choice to a good nomination at least, and prevent in a great degree intrigue and cabal. A particular objection with him against an absolute election by the Legislature was, that the Executive in that case would be too dependent to stand the mediator between the intrigues and sinister views of the Representatives and the general liberties and interests of the people.

Mr. PINCKNEY did not expect this question would again have been brought forward; an election by the people being liable to the most obvious and striking objections. They will be led by a few active and designing men. The most populous States, by combining in favor of the same individual, will be able to carry their points. The national Legislature, being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution.

Mr. GOUVERNEUR MORRIS. It is said, that in case of an election by the people the populous States will combine and elect whom they please. Just the reverse. The people of such States cannot combine. If there be any combination, it must be among their Representatives in the Legislature. It is said, the people will be led by a few designing men. This might happen in a small district. It can never happen throughout the continent. In the election of a Governor of New York, it sometimes is the case in particular spots, that the activity and intrigues of little partizans are successful; but the general voice of the State is never influenced by such artifices. It is said, the multitude will be uninformed. It is true they would be uninformed of what passed in the Legislative conclave, if the election were to be made there; but they will not be uninformed of those great and illustrious characters which have merited their esteem and confidence. If the Executive be chosen by the national Legislature, he will not be independent of it; and if not independent, usurpation and tyranny on the part of the Legislature will be the consequence. This was the case in England in the last century. It has been the case in Holland, where their Senates have engrossed all power. It has been the case every where. He was surprised that an election by the people at large should ever have been likened to the Polish election of the first Magistrate. An election by the Legislature will bear a real likeness to the election by the Diet of Poland. The great must be the electors in both cases, and the corruption and cabal which are known to characterize the one would soon find their way into the other. Appointments made by numerous bodies are always worse than those made by single responsible individuals or by the people at large.

Col. MASON. It is curious to remark the different language held at different times. At one moment we are told that the Legislature is entitled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue and corruption, and cannot be trusted at all. But not to dwell on this inconsistency, he would observe that a government which is to last ought at least to be practicable. Would this be the case if the proposed election should be left to the people at large? He conceived it would be as unnatural to refer the choice of a proper character for Chief Magistrate to the people, as it would, to refer a trial of colors to a blind man. The extent of the country renders it impossible, that the people can have the requisite capacity to judge of the respective pretensions of the candidates.

Mr. WILSON could not see the contrariety stated by (Col. MASON.) The Legislature might deserve confidence in some respects, and distrust in others. In acts which were to affect them and their constituents precisely alike, confidence was due; in others, jealousy was warranted. The appointment to great offices, where the Legislature might feel many motives not common to the public, confidence was surely misplaced. This branch of business, it was notorious, was the most corruptly managed, of any that had been committed to legislative bodies.

Mr. WILLIAMSON conceived that there was the same difference between an election, in this case, by the people and by the Legislature, as between an appointment by lot and by choice. There are at present distinguished characters, who are known perhaps to almost every man. This will not always be the case. The people will be sure to vote for some man in their own State; and the largest State will be sure to succeed. This will not be Virginia, however. Her slaves will have no suffrage. As the salary of the Executive will be fixed and he will not be eligible a second time, there will not be such a dependence on the Legislature as has been imagined.

On the question on an election by the people, instead of the Legislature, it passed in the negative, — Pennsylvania, aye — 1; Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no — 9.

Mr. L. MARTIN moved that the Executive be chosen by Electors appointed by the several Legislatures of the individual States.

Mr. BROOM seconds.

On the question, it passed in the negative, — Delaware, Maryland, aye — 2; Massachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no — 8.

On the question on the words, “to be chosen by the National Legislature,” it passed unanimously in the affirmative.

“For the term of seven years,” — postponed, nem. con., on motion of Mr. HOUSTON and Mr. GOUVERNEUR MORRIS.

“To carry into execution the national laws,” — agreed to, nem. con.

“To appoint to offices in cases not otherwise provided for,” — agreed to, nem. con.

“To be ineligible a second time,” —Mr. HOUSTON moved to strike out this clause.

Mr. SHERMAN seconds the motion.

Mr. GOUVERNEUR MORRIS espoused the motion. The ineligibility proposed by the clause, as it stood, tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines.

On the question for striking out, as moved Mr. HOUSTON, it passed in the affirmative, — Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Georgia, aye — 6; Delaware, Virginia, North Carolina, South Carolina, no — 4.

The clause, “for the term of seven years,” being resumed, –

Mr. BROOM was for a shorter term, since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a second time, he should have preferred a longer term.

Doctor McCLURG¹ moved to strike out seven years, and insert “during good behaviour.” By striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent forever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department.

Mr. GOUVERNEUR MORRIS seconded the motion. He expressed great pleasure in hearing it. This was the way to get a good Government. His fear that so valuable an ingredient would not be attained had led him to take the part he had done. He was indifferent how the Executive should be chosen, provided he held his place by this tenure.

Mr. BROOM highly approved the motion. It obviated all his difficulties.

Mr. SHERMAN considered such a tenure as by no means safe or admissible. As the Executive Magistrate is now re-eligible, he will be on good behaviour as far as will be necessary. If he behaves well, he will be continued; if otherwise, displaced, on a succeeding election.

Mr. MADISON.² If it be essential to the preservation of liberty that the Legislative, Executive, and Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislature, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature by an undue complaisance, and thus render the Legislature the virtual expositor, as well as the maker of the laws. In like manner, a dependence of the Executive on the Legislature would render it the executor as well as the maker of laws; and then, according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive and Judiciary departments in several respects. The latter executed the laws in certain cases, as the former did in others. The former expounded and applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances, — first, the collective interest and security were much more in the power belonging to the Executive, than to the Judiciary, department; secondly, in the administration of the former, much greater latitude is left to opinion and discretion than in the administration of the latter. But if the second consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Executive, than the Judges, and forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a union between the Executive and Legislative powers, than between the judiciary and legislative powers. He conceived it to be absolutely necessary to a well constituted Republic, that the two first should be kept distinct and independent of each other. Whether the plan proposed by the motion was a proper one, was another question; as it depended on the practicability of instituting a tribunal for impeachments as certain and as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing and discussion, until a less objectionable expedient should be applied for guarding against a dangerous union of the Legislative and Executive departments.

Colonel MASON. This motion was made some time ago, and negatived by a very large majority. He trusted that it would be again negatived. It would be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender, holding his office by such a tenure, to submit to a trial. He considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary monarchy. If the motion should finally succeed, he might himself live to see such a revolution. If he did not, it was probable his children or grandchildren would. He trusted there were few men in that House who wished for it. No State, he was sure, had so far revolted from republican principles, as to have the least bias in its favor.

Mr. MADISON was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience had proved a tendency in our government to throw all power into the Legislative vortex. The Executives of the States are in general little more than ciphers; the Legislatures omnipotent. If no effectual check be devised for restraining the instability and encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of republican government therefore required some expedient for the purpose, but required evidently, at the same time, that, in devising it, the genuine principles of that form should be kept in view.

Mr. GOUVERNEUR MORRIS was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchical government was to establish such a Republican government as would make the people happy, and prevent a desire of change.

Doct. McCLURG was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to republican government, as not to be sensible of the tyrannies that had been and may be exercised under that form. It was an essential object with him to make the Executive independent of the Legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behaviour.

On the questing for inserting “during good behaviour,” in place of “seven years [with a re-eligibility],” it passed in the negative, — New Jersey, Pennsylvania, Delaware, Virginia, aye — 4; Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, no — 6.³

On the motion to strike out “seven years,” it passed in the negative, — Massachusetts, Pennsylvania, Delaware, North Carolina, aye — 4; Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, no — 6.⁴

It was now unanimously agreed, that the vote which had struck out the words “to be ineligible a second time,” should be reconsidered to-morrow.

Adjourned.

¹ The probable object of this motion was merely to enforce the argument against the re-eligibility of the Executive magistrate, by holding out a tenure during good behaviour as the alternative for keeping him independent of the Legislature. 

² The view here taken of the subject was meant to aid in parrying the animadversions likely to fall on the motion of Doctor McClurg, for whom J. M. had a particular regard. The Doctor, though possessing talents of the highest order, was modest and unaccustomed to exert them in public debate. 

³ This vote is not to be considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the Executive on the Legislature, and thereby facilitate some final arrangement of a contrary tendency. The avowed friends of an Executive “during good behavior” were not more than three or four, nor is it certain they would have adhered to such a tenure. 

An independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community, seemed to be generally admitted as the true basis of a well constructed Government.