The Formation & Evolution of the American Constitution. Madison James

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СКАЧАТЬ the 1st branch & by the States as to the 2d branch; by which means the Citizens of the States would be represented both individually & collectively.

      General Pinkney wished to have a good National Government & at the same time to leave a considerable share of power in the States. An election of either branch by the people scattered as they are in many States, particularly in S. Carolina was totally impracticable. He differed from gentlemen who thought that a choice by the people would be a better guard against bad measures, than by the Legislatures. A majority of the people in S. Carolina were notoriously for paper-money as a legal tender; the Legislature had refused to make it a legal tender. The reason was that the latter had some sense of character and were restrained by that consideration. The State Legislatures also he said would be more jealous, & more ready to thwart the National Government, if excluded from a participation in it. The Idea of abolishing these Legislatures would never go down.

      Mr. Wilson would not have spoken again, but for what had fallen from Mr. Read; namely, that the idea of preserving the State Governments ought to be abandoned. He saw no incompatibility between the national & State Governments provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it.

      On the question for electing the 1st branch by the State Legislatures as moved by Mr. Pinkney: it was negatived:

      Mass. no. Connecticut ay. N. Y. no. N. J. ay. Pennsylvania no. Del. no. Maryland no. Virginia no. N. C. no. S. C. ay. Geo. no.

      Mr. Wilson moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after "National Executive" the words "with a convenient number of the national Judiciary;" remarking the expediency of reinforcing the Executive with the influence of that Department.

      Mr. Madison seconded the motion. He observed that the great difficulty in rendering the Executive competent to its own defence arose from the nature of Republican Government which could not give to an individual citizen that settled pre-eminence in the eyes of the rest, that weight of property, that personal interest against betraying the national interest, which appertain to an hereditary magistrate. In a Republic personal merit alone could be the ground of political exaltation, but it would rarely happen that this merit would be so pre-eminent as to produce universal acquiescence. The Executive Magistrate would be envied & assailed by disappointed competitors: His firmness therefore would need support. He would not possess those great emoluments from his station, nor that permanent stake in the public interest which would place him out of the reach of foreign corruption. He would stand in need therefore of being controuled as well as supported. An association of the Judges in his revisionary function would both double the advantage and diminish the danger. It would also enable the Judiciary Department the better to defend itself against Legislative encroachments. Two objections had been made 1st that the Judges ought not to be subject to the bias which a participation in the making of laws might give in the exposition of them. 2dly that the Judiciary Department ought to be separate & distinct from the other great Departments. The 1st objection had some weight; but it was much diminished by reflecting that a small proportion of the laws coming in question before a Judge would be such wherein he had been consulted; that a small part of this proportion would be so ambiguous as to leave room for his prepossessions; and that but a few cases would probably arise in the life of a Judge under such ambiguous passages. How much good on the other hand would proceed from the perspicuity, the conciseness, and the systematic character which the Code of laws would receive from the Judiciary talents. As to the 2d objection, it either had no weight, or it applied with equal weight to the Executive & to the Judiciary revision of the laws. The maxim on which the objection was founded required a separation of the Executive as well as the Judiciary from the Legislature & from each other. There would in truth however be no improper mixture of these distinct powers in the present case. In England, whence the maxim itself had been drawn, the Executive had an absolute negative on the laws; and the Supreme tribunal of Justice (the House of Lords) formed one of the other branches of the Legislature. In short whether the object of the revisionary power was to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form, the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable.

      Mr. Gerry thought the Executive, whilst standing alone would be more impartial than when he could be covered by the sanction & seduced by the sophistry of the Judges.

      Mr. King. If the Unity of the Executive was preferred for the sake of responsibility, the policy of it is as applicable to the revisionary as to the executive power.

      Mr. Pinkney had been at first in favor of joining the heads of the principal departments the Secretary at War, of foreign affairs &c. — in the council of revision. He had however relinquished the idea from a consideration that these could be called on by the Executive Magistrate whenever he pleased to consult them. He was opposed to the introduction of the Judges into the business.

      Col. Mason was for giving all possible weight to the revisionary institution. The Executive power ought to be well secured against Legislative usurpations on it. The purse & the sword ought never to get into the same hands whether Legislative or Executive.

      Mr. Dickinson. Secrecy, vigor & despatch are not the principal properties required in the Executive. Important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. He thought too a junction of the Judiciary to it, involved an improper mixture of powers.

      Mr. Wilson remarked, that the responsibility required belonged to his Executive duties. The revisionary duty was an extraneous one, calculated for collateral purposes.

      Mr. Williamson, was for substituting a clause requiring 2/3 for every effective act of the Legislature, in place of the revisionary provision.

      On the question for joining the Judges to the Executive in the revisionary business,

      Mass. no. Connecticut ay. N. Y. ay. N. J. no. Pennsylvania no. Del. no. Maryland no. Virginia ay. N. C. no. S. C. no. Geo. no.

      Mr. Pinkney gave notice that tomorrow he should move for the reconsideration of that clause in the sixth Resolution adopted by the Committee which vests a negative in the National Legislature on the laws of the several States.

      The Committee rose & the House adjourned to 11 OC.

1 "Mr. Gerry. — If the national legislature are appointed by the state legislatures, demagogues and corrupt members will creep in." — Yates's Secret Debates in Forming the Constitution, 105.

2 "My own character I shall not attempt to draw, but leave those who may choose to speculate on it, to consider it in any light that their fancy or imagination may depict. I am conscious of having discharged my duty as a Soldier through the course of the late revolution with honor and propriety; and my services in Congress and the Convention were bestowed with the best intention towards the interest of Georgia, and towards the general welfare of the Confederacy. I possess ambition, and it was that, and the flattering opinion which some of my Friends had of me, that gave me a seat in the wisest Council in the World, and furnished me with an opportunity of giving these short Sketches of the Characters who composed it." — Pierce's Notes, Amer. Hist. Rev., iii., 334.

      Thursday June 7th 1787 — In Committee Of The Whole

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