The Formation & Evolution of the American Constitution. Madison James

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СКАЧАТЬ 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 Dr. F. 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 these into all his own hands, the American Executive, like the British, will by bribery & influence, save himself the trouble & 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 & 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 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 eno' 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 S. C., (Mr. Butler) a day or two ago called our attention to the case of the U. 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 & more oppressive, they were at length set aside. Still however there was a party for the P. of Orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de Witts, and got the powers revested in the Stadtholder. Afterwards another Prince had power to excite insurrections & make the Stadtholdership hereditary. And the present Stadtholder is ready to wade thro' 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. No body 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 Executive an absolute negative, — Massachusetts no. Connecticut no. N. Y. no. Pennsylvania no. Del. no. Maryland no. Virginia no. N. C. no. S. C. no. Georgia no.

      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 — — ."

      Doctor Franklin seconds the motion.

      Mr. Gerry observed that a 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 question "for giving this suspending power" all the States, to wit Massachusetts Connecticut N. Y. Pennsylvania Del. Maryland Virginia N. C. S. C. Georgia, were No.

      On a question for enabling two thirds of each branch of the Legislature to overrule the revisionary 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 controul on the laws unless overruled by 2/3 of each branch; Massachusetts ay. Connecticut no. N. Y. ay. Pennsylvania ay. Del. ay. Maryland no. Virginia ay. N. C. ay. S. C. ay. Geo. ay.

It was moved by Mr. Wilson seconded by Mr. Madison — that the following amendment be made to the last resolution — after the words "National Ex." to add "& a convenient number of the National Judiciary."2

      An Objection of order being taken by Mr. Hamilton to the introduction of the last amendment at this time, notice was given by Mr. W. & Mr. M., that the same would be moved to-morrow, — whereupon Wednesday (the day after) was assigned to reconsider the amendment of Mr. Gerry.

      It was then moved & seconded to proceed to the consideration of the 9th 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 & 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.

1

      According to Pierce, King followed Wilson:

      "Mr. King was of opinion that the Judicial ought not to join in the negative of a Law, because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the Constitution." — Pierce's Notes, Am. Hist. Rev., iii., 322.

2

      Before the motion, according to King's notes:

      "Madison — The judiciary ought to be introduced in the business of Legislation — they will protect their department, and united with the Executive make its negatives more strong. There is weight in the objections to this measure — but a check on the Legislature is necessary, Experience proves it to be so, and teaches us that what has been thought a calumny on a republican Govt. is nevertheless true — In all Countries are diversity of Interests, the Rich & the Poor, the Dr. & Cr., the followers of different Demagogues, the Diversity of religious Sects — the Effects of these Divisions in Ancient Govts. are well known, and the like causes will now produce like effects. We must therefore introduce in our system Provisions against the measures of an interested majority — a check is not only necessary to protect the Executive power, but the minority in the Legislature. The independence of the Executive, having the Eyes of all upon him will make him an impartial judge — add the Judiciary, and you greatly increase his respectability."

      After the motion: "Dickinson opposed — You shd. separate the Departments — you have given the Executive a share in Legislation; and it is asked why not give a share to the judicial power. Because the Judges are to interpret the Laws, and therefore shd. have no share in making them — not so with the Executive whose causing the Laws to be Executed is a ministerial office only. Besides we have experienced in the Br. Constitution which confers the Power of a negative on the Executive." — King's Life and Correspondence of Rufus King, i., 592.

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