Chapter XV: Part 15

M^r Wilson would add a few words only. If equality in the 2^d branch was an error that time would correct, he should be less anxious to exclude it being sensible that perfection was unattainable in any plan; but being a fundamental and a perpetual error, it ought by all means to be avoided. A vice in the Representation, like an error in the first concoction, must be followed by disease, convulsions, and finally death itself. The justice of the general principle of proportional representation has not in argument at least been yet contradicted. But it is said that a departure from it so far as to give the States an equal vote in one branch of the Legislature is essential to their preservation. He had considered this position maturely, but could not see its application. That the States ought to be preserved he admitted. But does it follow that an equality of votes is necessary for the purpose? Is there any reason to suppose that if their preservation should depend more on the large than on the small States the security of the States ag^{st} the Gen^l Government would be diminished? Are the large States less attached to their existence more likely to commit suicide, than the small? An equal vote then is not necessary as far as he can conceive: and is liable among other objections to this insuperable one: The great fault of the existing confederacy is its inactivity. It has never been a complaint ag^{st} Cong^s that they governed over much. The complaint has been that they have governed too little. To remedy this defect we were sent here. Shall we effect the cure by establishing an equality of votes as is proposed? no: this very equality carries us directly to Congress; to the system which it is our duty to rectify. The small States cannot indeed act, by virtue of this equality, but they may controul the Gov^t as they have done in Cong^s. This very measure is here prosecuted by a minority of the people of America. Is then the object of the Convention likely to be accomplished in this way? Will not our Constituents say? we sent you to form an efficient Gov^t and you have given us one more complex indeed, but having all the weakness of the former govern^t. He was anxious for uniting all the States under one Govern^t. He knew there were some respectable men who preferred three confederacies, united by offensive & defensive alliances. Many things may be plausibly said, some things may be justly said, in favor of such a project. He could not however concur in it himself; but he thought nothing so pernicious as bad first principles.

M^r Elseworth asked two questions, one of M^r Wilson, whether he had ever seen a good measure fail in Cong^s for want of a majority of States in its favor? He had himself never known such an instance: the other of M^r Madison whether a negative lodged with the majority of the States even the smallest, could be more dangerous than the qualified negative proposed to be lodged in a single Executive Magistrate, who must be taken from some one State?

M^r Sherman, signified that his expectation was that the Gen^l Legislature would in some cases act on the _federal principle_, of requiring quotas. But he thought it ought to be empowered to carry their own plans into execution, if the States should fail to supply their respective quotas.

On the question for agreeing to M^r Pinkney's motion for allowing N. H. 2. Mas. 4. &c.--it passed in the negative,

Mass. no. M^r King ay. M^r Ghorum absent. Con^t no. N. J. no.
P^a ay. Del. no. M^d ay. V^a ay. N. C. no. S. C. ay. Geo. no.

Adjourned.[132]

[132] "Memorandum.
"July 15, '87.

"About twelve days since the Convention appointed a Grand
Comee, consisting of Gerry, Ellsworth, Yates, Paterson,
Franklin, Bedford, Martin, Mason, Rutledge & Baldwin to
adjust the Representation in the two Brs. of the Legislature
of the U. S. They reported yt. every 40,000 Inhabs. taken
agreeably to the Resolution of Cong. of ye 18 Ap. 1783, shd.
send one member to the first Br. of the Legislature, yt.
this Br. shd. originate exclusively Money Bills, & also
originate ye appropriations of money; and that in ye Senate
or upper Br. each State shd. have one vote & no more. The
Representation as to the first Br. was twice recommitted
altho' not to the same Committee; finally it was agreed yt
Taxation of the direct sort & Representation shd. be in
direct proportion with each other--that the first Br. shd.
consist of 65 members, viz. N. H. 3, M. 8, R. I. 1, C. 5,
N. Y. 6, N. J. 4, P. 8, D. 1, M. 6, V. 10, N. C. 5, S. C. 5,
G. 3,--and that the origination of money Bills and the
Appropriations of money shd. belong in the first instance to
yt. Br., but yt in the Senate or 2nd Br. each State shd.
have an equal Vote. In this situation of the Report it was
moved by S. Car. that in the formation of the 2nd Br.,
instead of an equality of Votes among the States, that N. H.
shd. have 2, M. 4, R. I. 1, C. 3, N. Y. 3, N. J. 2, P. 4, D.
1, M. 3, V. 5, N. C. 3, S. C. 3, G. 2 = total 36.

"On the question to agree to this apportionment, instead of
the equality (Mr. Gorham being absent) Mass., Con., N. Jer.,
Del., N. Car., & Georg--No. Penn., Mar., Virg. & S. Car.
Aye.

"This Question was taken and to my mortification by the vote
of Mass. lost on the 14th July.

"(endorsed 'inequality lost by vote of Mass.')"--King's
Note, King's _Life and Correspondence of Rufus King_, I.,
615.

MONDAY, JULY 16. IN CONVENTION.

On the question for agreeing to the whole Report as amended & including the equality of votes in the 2^d branch, it passed in the affirmative.

Mass. divided M^r Gerry, M^r Strong. ay. M^r King, M^r Ghorum
no. Con^t ay. N. J. ay. Pen^a no. Del. ay. M^d ay. V^a no.
N. C. ay. M^r Spraight no. S. C. no. Geo. no.

The whole thus passed is in the words following, viz. "Resolved, that in the original formation of the Legislature of the U. S. the first branch thereof shall consist of sixty five members, of which number N. Hampshire shall send 3. Mass^{ts} 8. Rh. I. 1. Conn^t 5. N. Y. 6. N. J. 4. Pen^a 8. Del. 1. Mary^d 6. Virg^a 10. N. C. 5. S. C. 5. Geo. 3.--But as the present situation of the States may probably alter in the number of their inhabitants, the Legislature of the U. S. shall be authorized from time to time to apportion the number of Rep^s and in case any of the States shall hereafter be divided, or enlarged by addition of territory, or any two or more States united, or any new States created within the limits of the U. S. the Legislature of the U. S. shall possess authority to regulate the number of Rep^s in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned. namely--provided always that representation ought to be proportioned according to direct taxation; and in order to ascertain the alteration in the direct taxation, which may be required from time to time by the changes in the relative circumstances of the States--

Resolved, that a Census be taken within six years from the 1^{st} meeting of the Legislature of the U. S., and once within the term of every 10 years afterwards of all the inhabitants of the U. S. in the manner and according to the ratio recommended by Congress in their Resolution of April 18. 1783, and that the Legislature of the U. S. shall proportion the direct taxation accordingly--

Resolved, that all bills for raising or appropriating money, and for fixing the salaries of officers of the Gov^t of the U. S. shall originate in the first branch of the Legislature of the U. S. and shall not be altered or amended in the 2^d branch: and that no money shall be drawn from the Public Treasury, but in pursuance of appropriations to be originated in the 1^{st} branch.

_Resolv^d_, that in the 2^d branch of the Legislature of the U. S., each State shall have an equal vote.

The 6^{th} Resol: in the Report from the Com^e of the whole House, which had been postponed in order to consider the 7 & 8^{th} Resol^{ns}.; was now resumed. see the Resol^n:

The 1^{st} member "That the Nat^l Legislature ought to possess the Legislative Rights vested in Cong^s by the Confederation" was agreed to nem. con.

The next, "And moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation," being read for a question.

M^r Butler calls for some explanation of the extent of this power; particularly of the word _incompetent_. The vagueness of the terms rendered it impossible for any precise judgment to be formed.

M^r Ghorum. The vagueness of the terms constitutes the propriety of them. We are now establishing general principles, to be extended hereafter into details which will be precise & explicit.

M^r Rutlidge, urged the objection started by M^r Butler and moved that the clause should be committed to the end that a specification of the powers comprised in the general terms, might be reported.

On the question for commitment, the States were equally divided

Mas. no. Con^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a ay. N.
C. no. S. C. ay. Geo. ay: So it was lost.

M^r Randolph. The vote of this morning (involving an equality of suffrage in 2^d branch) had embarrassed the business extremely. All the powers given in the Report from the Com^e of the whole, were founded on the supposition that a Proportional representation was to prevail in both branches of the Legislature. When he came here this morning his purpose was to have offered some propositions that might if possible have united a great majority of votes, and particularly might provide ag^{st} the danger suspected on the part of the smaller States, by enumerating the cases in which it might lie, and allowing an equality of votes in such cases.[133] But finding from the Preceding vote that they persist in demanding an equal vote in all cases, that they have succeeded in obtaining it, and that N. York, if present would probably be on the same side, he could not but think we were unprepared to discuss this subject further. It will probably be in vain to come to any final decision with a bare majority on either side. For these reasons he wished the Convention might adjourn, that the large States might consider the steps proper to be taken in the present solemn crisis of the business, and that the small States might also deliberate on the means of conciliation.

[133] See the paper, in the appendix, co[~m]unicated by M^r R.
to J. M. July 10.--Note in Madison's hand.

M^r Patterson, thought with M^r R. that it was high time for the Convention to adjourn that the rule of secrecy ought to be rescinded, and that our Constituents should be consulted. No conciliation could be admissible on the part of the smaller States on any other ground than that of an equality of votes in the 2^d branch. If M^r Randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart.

Gen^l Pinkney wished to know of M^r R. whether he meant an adjournment sine die, or only an adjournment for the day. If the former was meant, it differed much from his idea. He could not think of going to S. Carolina and returning again to this place. Besides it was chimerical to suppose that the States if consulted would ever accord separately, and beforehand.

M^r Randolph, had never entertained an idea of an adjournment sine die; & was sorry that his meaning had been so readily & strangely misinterpreted. He had in view merely an adjournment till to-morrow, in order that some conciliatory experiment might if possible be devised, and that in case the smaller States should continue to hold back, the larger might then take such measures, he would not say what, as might be necessary.

M^r Patterson seconded the adjournment till to-morrow, as an opportunity seemed to be wished by the larger States to deliberate further on conciliatory expedients.

On the question for adjourning till tomorrow, the States were equally divided,

Mas. no. Con^t no. N. J. ay. P^a ay. Del. no. M^d ay. V^a ay.
N. C. ay. S. C. no. Geo. no, so it was lost.

M^r Broome thought it his duty to declare his opinion ag^{st} an adjournment sine die, as had been urged by M^r Patterson. Such a measure he thought would be fatal. Something must be done by the Convention, tho' it should be by a bare majority.

M^r Gerry observed that Mas^{ts} was opposed to an adjournment, because they saw no new ground of compromise. But as it seemed to be the opinion of so many States that a trial sh^d be made, the State would now concur in the adjournm^t.

M^r Rutlidge could see no need of an adjourn^t because he could see no chance of a compromise. The little States were fixt. They had repeatedly & solemnly declared themselves to be so. All that the large States then had to do was to decide whether they would yield or not. For his part he conceived that altho' we could not do what we thought best, in itself, we ought to do something. Had we not better keep the Gov^t up a little longer, hoping that another Convention will supply our omissions, than abandon every thing to hazard. Our Constituents will be very little satisfied with us if we take the latter course.

M^r Randolph & M^r King renewed the motion to adjourn till tomorrow.

On the question. Mas. ay. Con^t no. N. J. ay. P^a ay. Del. no.
M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. div^d.

Adjourned

* * * * *

On the morning following before the hour of the Convention a number of the members from the larger States, by common agreement met for the purpose of consulting on the proper steps to be taken in consequence of the vote in favor of an equal Representation in the 2^d branch, and the apparent inflexibility of the smaller States on that point. Several members from the latter States also attended. The time was wasted in vague conversation on the subject, without any specific proposition or agreement. It appeared indeed that the opinions of the members who disliked the equality of votes differed much as to the importance of that point, and as to the policy of risking a failure of any general act of the Convention by inflexibly opposing it. Several of them supposing that no good Governm^t could or would be built on that foundation, and that as a division of the convention into two opinions was unavoidable; it would be better that the side comprising the principal States, and a majority of the people of America, should propose a scheme of Gov^t to the States, than that a scheme should be proposed on the other side, would have concurred in a firm opposition to the smaller States, and in a separate recommendation, if eventually necessary. Others seemed inclined to yield to the smaller States, and to concur in such an Act however imperfect & exceptionable, as might be agreed on by the Convention as a body, tho' decided by a bare majority of States and by a minority of the people of the U. States. It is probable that the result of this consultation satisfied the smaller States that they had nothing to apprehend from a Union of the larger, in any plan whatever ag^{st} the equality of votes in the 2^d branch.

TUESDAY JULY 17. IN CONVENTION.

M^r Govern^r Morris, moved to reconsider the whole Resolution agreed to yesterday concerning the constitution of the 2 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 Gov^t 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 Govern^t as that it might be justly & 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 2^d 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 6^{th} Resol^n in the Report of the Com^e of the Whole relating to the powers, which had been postponed in order to consider the 7 & 8^{th} relating to the constitution of the Nat^l Legislature, was now resumed.

M^r Sherman observed that it would be difficult to draw the line between the powers of the Gen^l Legislature, and those to be left with the States; that he did not like the definition contained in the Resolution, and proposed in place of the words "individual legislation" line 4. 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 Gov^t of such States only, and wherein the general welfare of the U. States is not concerned."

M^r Wilson 2^{ded} the amendment as better expressing the general principle.

M^r Gov^r Morris opposed it. The internal police, as it would be called & understood by the States ought to be infringed in many cases, as in the case of paper money & other tricks by which Citizens of other States may be affected.

M^r 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_.

M^r Gov^r 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 Gen^l Gov^t should recur to quotas & requisitions, which are subversive of the idea of Gov^t.

M^r 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 Question on M^r Sherman's motion it passed in the negative

Mas. no. Con^t ay. N. J. no. P^a no. Del. no. M^d ay. V^a no.
N. C. no. S. C. no. Geo. no.

M^r Bedford moved that the 2^d member of Resolution 6. 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 U. States may be interrupted by the exercise of individual Legislation."

M^r Gov^r Morris 2^{ds} the motion.

M^r 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.

M^r Bedford. It is not more extensive or formidable than the clause as it stands: _no State_ being _separately_ competent to legislate for the _general interest_ of the Union.

On question for agreeing to M^r Bedford's motion it passed in the affirmative.

Mas. ay. Con^t no. N. J. ay. P^a ay. Del. ay. M^d ay. V^a no.
N. C. ay. S. C. no. Geo. no.

On the sentence as amended, it passed in the affirmative.

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. ay. M^d ay. V^a ay.
N. C. ay. S. C. no. Geo. no.

The next. "To negative all laws passed by the several States contravening in the opinion of the Nat: Legislature the articles of Union, or any treaties subsisting under the authority of y^e Union."

M^r Gov^r Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative authority should be given to the Gen^l Government.

M^r 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.

M^r L. Martin considered the power as improper & inadmissible. Shall all the laws of the States be sent up to the Gen^l Legislature before they shall be permitted to operate?

M^r Madison, considered the negative on the laws of the States as essential to the efficacy & security of the Gen^l Gov^t. The necessity of a general Gov^t 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 controuled. Nothing short of a negative on their laws will controul it. They will pass laws which will accomplish their injurious objects before they can be repealed by the Gen^l Legisl^{re} or be set aside by the National Tribunals. Confidence can not be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less depend^t on the Legislatures. In Georgia they are appointed annually by the Legislature. In R. 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 & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. Its utility is sufficiently displayed in the British system. Nothing could maintain the harmony & 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 thro' ignorance or a partiality to one particular part of y^e empire; but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Nat^l Legisl: 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.

M^r Gov^r Morris was more & 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 departm^t and if that security should fail; may be repealed by a Nation^l law.

M^r 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 & operative.

M^r Pinkney 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.

Mas. ay. C^t no. N. J. no. P^a no. Del. no. M^d no. V^a ay.
N. C. ay. S. C. no. Geo. no.

M^r Luther Martin moved the following resolution "that the Legislative acts of the U. S. made by virtue & in pursuance of the articles of Union and all Treaties made & ratified under the authority of the U. S. 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--& 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:

9^{th} Resol: "that Nat^l Executive consist of a single person," Ag^d to nem. con.

"To be chosen by the National Legisl:"

M^r Govern^r Morris was pointedly ag^{st} his being so chosen. He will be the mere creature of the Legisl: if appointed & 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 N. Y. & in Con^t and would he believed be found so, in the case of an Executive for the U. 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," & insert "citizens of the U. S."

M^r 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 Legisl^{re} a majority of voices may be made necessary to constitute an election.

M^r Wilson. Two arguments have been urged ag^{st} an election of the Executive Magistrate by the people. 1 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 & 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 in one place; which would not be the case with us. The 2^d arg^t 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 Mass^{ts}, where the Legislature by majority of voices, decide in case a majority of 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 & cabal. A particular objection with him ag^{st} an absolute election by the Legisl^{re} was that the Exec: in that case would be too dependent to stand the mediator between the intrigues & sinister views of the Representatives and the general liberties & interests of the people.

M^r Pinkney did not expect this question would again have been brought forward: An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points. The Nat^l 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.

M^r Gov^r Morris. It is said that in case of an election by the people the populous States will combine & 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 Gov^r of N. York, it sometimes is the case in particular spots, that the activity & 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 & illustrious characters which have merited their esteem & confidence. If the Executive be chosen by the Nat^l Legislature, he will not be independent on it; and if not independent, usurpation & 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 & cabal w^{ch} 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 & 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 colours 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.

M^r Wilson, could not see the contrariety stated (by Col. Mason.) The Legisl^{re} might deserve confidence in some respects, and distrust in others. In acts which were to affect them & y^r Constituents precisely alike confidence was due. In others jealousy was warranted. The appointment to great offices, where the Legisl^{re} 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.

M^r Williamson, conceived that there was the same difference between an election in this case, by the people and by the legislature, as between an app^t 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 Virg^a however. Her slaves will have no suffrage. As the Salary of the Executive will be fixed, and he will not be eligible a 2^d time, there will not be such a dependence on the Legislature as has been imagined.

Question on an election by the people instead of the Legislature, which passed in the negative.

Mas. no. Con^t no. N. J. no. P^a ay. Del. no. M^d no. V^a no.
N. C. no. S. C. no. Geo. no.

M^r L. Martin moved that the Executive be chosen by Electors appointed by the several Legislatures of the individual States.

M^r Broome 2^{ds}. On the Question, it passed in the negative.

Mas. no. Con^t no. N. J. no. P^a no. Del. ay. M^d ay. V^a no.
N. C. no. S. C. no. Geo. no.

On the question on the words, "to be chosen by the Nation^l Legislature" it passed unanimously in the affirmative

"For the term of seven years"--postponed nem. con. on motion of M^r Houston and Gov. Morris

"to carry into execution the nation^l 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"--M^r Houston moved to strike out this clause.

M^r Sherman 2^{ds} the motion.

M^r Gov^r 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 by M^r Houston, it passed in the affirmative

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a no. N.
C. no. S. C. no. Geo. ay.

"For the term of 7 years," resumed.

M^r Broom was for a shorter term since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a 2^d time, he should have preferred a longer term.

Doc^r M^cClurg moved[134] to strike out 7 years, and insert "during good behavior." 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.

[134] 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 alternate for keeping him independent of
the legislature.--Note in Madison's handwriting.

M^r Gov^r Morris 2^{ded} 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.

M^r Broome highly approved the motion. It obviated all his difficulties

M^r 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 behavior as far as will be necessary. If he behaves well he will be continued; if otherwise, displaced, on a succeeding election.

M^r Madison.[135] If it be essential to the preservation of liberty that the Legisl: Execut: & 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 Legislure, 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; & 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 & Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded & applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances--1. the collective interest & security were much more in the power belonging to the Executive than to the Judiciary department. 2. 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 2^d consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Execut: than the Judges, & 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 & Legisl: powers, than between the Judiciary & Legislative powers. He conceived it to be absolutely necessary to a well constituted Republic that the two first sh^d be kept distinct & 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 impeachm^{ts} as certain & 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 & discussion, until a less objectionable expedient should be applied for guarding ag^{st} a dangerous union of the Legislative & Executive departments.

[135] The view here taken of the subject was meant to aid in
parrying the animadversions likely to fall on the motion of
D^r M^cClurg, for whom J. M. had a particular regard. The
Doc^r though possessing talents of the highest order was
modest & unaccustomed to exert them in public debate.--Note
in Madison's handwriting.

Col. Mason. This motion was made some time ago & negatived by a very large majority. He trusted that it w^d be again negatived. It w^d 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 grand children 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.

M^r 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 governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Gov^t 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.

M^r Gov^r Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchical Gov^t was to establish such a Repub. Gov^t as w^d make the people happy and prevent a desire of change.

Doc^r McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to Republican Gov^t as not to be sensible of the tyrannies that had been & 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 behavior.

On the question for inserting "during good behavior" in place of '7 years (with a re-eligibility)' it passed in the negative,

Mas. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay.
N. C. no. S. C. no. Geo. no.[136]

[136] (This vote is not 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, & thereby facilitate some
final arrangement of a contrary tendency. The avowed friends
of an Executive, during good behaviour were not more than
three or four, nor is it certain they would finally 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.)--Note in Madison's hand, except
from the words "nor is it certain" etc., which is in the
hand of his wife's brother, John C. Payne.

On the motion "to strike out seven years" it passed in the negative,

Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N.
C. ay. S. C. no. Geo. no.[137]

[137] (There was no debate on this motion. The apparent
object of many in the affirmative was to secure the
re-eligibility by shortening the term, and of many in the
negative to embarrass the plan of referring the appointment
and dependence of the Executive to the Legislature.)--Note
in Madison's hand.

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.

Adj^d.

WEDNESDAY JULY 18. IN CONVENTION.

On motion of M^r L. Martin to fix tomorrow for reconsidering the vote concerning "eligibility of the Exec^{tive} a 2^d time" it passed in the affirmative.

Mas. ay. Con^t ay. N. J. absent. P^a ay. Del. ay. M^d ay.
V^a ay. N. C. ay. S. C. ay. Geo. absent.

The residue of the Resol. 9. concerning the Executive was postp^d till tomorrow.

Resol. 10. that Executive sh^l have a right to negative legislative acts not afterwards passed by 2/3 of each branch, agreed to nem. con.

Resol. 11. "that a Nat^l Judiciary shall be estab^d to consist of one supreme tribunal", ag^d to nem. con.

"The judges of which to be appoint^d by the 2^d branch of the Nat^l Legislature,"

M^r Ghorum, w^d prefer an appointment by the 2^d branch to an appointm^t by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execu^{ve} with the advice & consent of the 2^d branch, in the mode prescribed by the constitution of Mas^{ts}. This mode had been long practised in that country, & was found to answer perfectly well.

M^r Wilson, still w^d prefer an appointm^t by the Executive; but if that could not be attained, w^d prefer in the next place, the mode suggested by M^r Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." M^r Gov^r Morris 2^{ded} the motion.

M^r L. Martin was strenuous for an app^t by the 2^d branch. Being taken from all the States it w^d be best informed of characters & most capable of making a fit choice.

M^r Sherman concurred in the observations of M^r Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2^d branch, than by the Executive.

M^r Mason. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides ag^{st} referring the appointment to the Executive. He mentioned as one, that as the Seat of Gov^t must be in some one State, and as the Executive would remain in office for a considerable time, for 4. 5. or 6 years at least, he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.

M^r Ghorum. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of Gov^t where they reside, as the Executive. If they cannot get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibility, and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a Public body may carry wickedness & cabal.

M^r Gov^r Morris supposed it would be improper for an impeachm^t of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they w^d be much about the Seat of Gov^t they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments ag^{st} the motion before the House.

M^r Madison suggested that the Judges might be appointed by the Executive, with the concurrence of 1/3 at least, of the 2^d branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2^d branch ag^{st} any incautious or corrupt nomination by the Executive.

M^r Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.

M^r Randolph. It is true that when the app^t of the Judges was vested in the 2^d branch an equality of votes had not been given to it. Yet he had rather leave the appointm^t there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving app^{ts} would be more diffusive if they depended on the Senate, the members of which w^d be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened.

M^r Bedford thought there were solid reasons ag^{st} leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.

M^r Ghorum remarked that the Senate could have no better information than the Executive. They must like him, trust to information from the members belonging to the particular State where the candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.

On the question for referring the appointment of the Judges to the Executive, instead of the 2^d branch

Mas. ay. Con^t no. P^a ay. Del. no. M^d no. V^a no. N. C. no.
S. C. no. Geo. absent.

M^r Ghorum moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2^d branch & every such nomination shall be made at least ---- days prior to such appointment." This mode he said had been ratified by the experience of a 140 years in Massachus^{ts}. If the app^t should be left to either branch of the Legislature, it will be a mere piece of jobbing.

M^r Gov^r Morris 2^{ded} & supported the motion.

M^r Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it, as too much fettering the Senate.

Question on M^r Ghorum's motion

Mas. ay. Con^t no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no.
S. C. no. Geo. absent.

M^r Madison moved that the Judges should be nominated by the Executive & such nomination should become an appointment if not disagreed to within ---- days by 2/3 of the 2^d branch.

M^r Gov^r Morris 2^{ded} the motion. By co[~m]on consent the consideration of it was postponed till tomorrow.

"To hold their offices during good behavior" & "to receive fixed salaries" agreed to nem: con:.

"In which (salaries of Judges) no increase or diminution shall be made so as to affect the persons at the time in office."

M^r Gov^r Morris moved to strike out "or increase." He thought the Legislature ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the Judges.

Doc^r Franklin was in favor of the motion. Money may not only become plentier, but the business of the department may increase as the Country becomes more populous.

M^r Madison. The dependence will be less if the _increase alone_ should be permitted, but it will be improper even so far to permit a dependence. Whenever an increase is wished by the Judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter. If at such a crisis there should be in Court suits to which leading members of the Legislature may be parties, the Judges will be in a situation which ought not to be suffered, if it can be prevented. The variations in the value of money, may be guarded ag^{st} by taking for a standard wheat or some other thing of permanent value. The increase of business will be provided for by an increase of the number who are to do it. An increase of salaries may easily be so contrived as not to affect persons in office.

M^r Gov^r Morris. The value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country. The increase of business can not be provided for in the supreme tribunal in the way that has been mentioned. All the business of a certain description whether more or less must be done in that single tribunal. Additional labor alone in the Judges can provide for additional business. Additional compensation therefore ought not to be prohibited.

On the question for striking out "or increase"

Mas. ay. Con^t ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no.
S. C. ay. Geo. absent

The whole clause as amended was then agreed to nem: con:

12. Resol: "that Nat^l Legislature be empowered to appoint inferior tribunals"

M^r Butler could see no necessity for such tribunals. The State Tribunals might do the business.

M^r L. Martin concurred. They will create jealousies & oppositions in the State tribunals, with the jurisdiction of which they will interfere.

M^r Ghorum. There are in the States already federal Courts with jurisdiction for trial of piracies &c. committed on the Seas. No complaints have been made by the States or the Courts of the States. Inferior tribunals are essential to render the authority of the Nat^l Legislature effectual.

M^r Randolph observed that the Courts of the States can not be trusted with the administration of the National laws. The objects of jurisdiction are such as will often place the General & local policy at variance.

M^r Gov^r Morris urged also the necessity of such a provision.

M^r Sherman was willing to give the power to the Legislature but wished them to make use of the State Tribunals whenever it could be done with safety to the general interest.

Col. Mason thought many circumstances might arise not now to be foreseen, which might render such a power absolutely necessary.

On question for agreeing to 12. Resol: empowering the National Legislature to appoint "inferior tribunals," Ag^d to nem. con.

"Impeachments of national officers," were struck out on motion for the purpose.