THE RECORDS OF THE FEDERAL CONVENTION of 1787
EDITED BY MAX FARRAND professor of history in yale university
Volume II
NEW HAVEN:
YALE UNIVERSITY PRESS
LONDON:
HENRY FROWDE
OXFORD UNIVERSITY PRESS
MCMXI

Copyright, 1911, by

Yale University Press

The Plimpton Press Norwood Mass. U.S.A.

Volume II: Proceedings

SATURDAY, JULY 14, 1787.

JOURNAL
Saturday July 14. 1787.

It was moved and seconded to agree to the following proposition, namely.

That to secure the liberties of the States already confederated, the number of representatives in the first branch from the States which shall hereafter be established, shall never exceed the representatives from such of the thirteen United States as shall accede to this Confederation.

On the question to agree to the proposition

it passed in the negative [Ayes — 4; noes — 5; divided — 1.]

It was moved and seconded to reconsider the two propositions reported from the grand Committee, and agreed by the House to stand part of the report — entered on the Journal of the 6. instant

It was moved and seconded to postpone the second clause of the report from the grand Committee, entered on the Journals of the 6 instant, in order to take up the following. namely

That the second branch of the Legislature shall have Thirty six Members of which number

New Hampshire shall have 2.
Massachusetts 4
Rhode Island 1
Connecticut 3
New York 3
New Jersey 2
Pennsylvania 4
Delaware 1
Maryland 3
Virginia 5
No Carolina 3
So Carolina 3
Georgia 2.

On the question to postpone, it passed in the negative. [Ayes — 4; noes — 6.] 1

and then the House adjourned till Monday

D ETAIL OF A YES AND N OES
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[154] aye aye no dd aye aye no no no no That the number of representatives in ye first branch from the States hereafter to be established shall not exceed the representatives from the States already confederated 4 5 1
[155] no no no aye no aye aye no aye no To postpone the 2d clause of the report from the grand Committee of the 6. instant in order to take up the substitute offd by Mr Pinckney 4 6

MADISON
Saturday. July 14. in Convention

Mr. L. Martin called for the question on the whole report, including the parts relating to the origination of money bills, and the equality of votes in the 2d. branch.

Mr. Gerry. wished before the question should be put, that the attention of the House might be turned to the dangers apprehended from Western States. He was for admitting them on liberal terms, but not for putting ourselves into their hands. They will if they acquire power like all men, abuse it. They will oppress commerce, and drain our wealth into the Western Country. To guard agst. these consequences, he thought it necessary to limit the number of new States to be admitted into the Union, in such a manner, that they should never be able to outnumber the Atlantic States. 2 He accordingly moved “that in order to secure the 〈liberties of the〉 States already confederated, the 〈number of〉 Representatives in the 1st. branch 〈of the States which shall hereafter be established〉 shall never exceed in number, the Representatives from such of the States 〈as shall accede to this confederation.〉 3

Mr. King. seconded the motion.

Mr. Sherman, thought there was no probability that the number of future States would exceed that of the Existing States. If the event should ever happen, it was too remote to be taken into consideration at this time. Besides We are providing for our posterity, for our children our grand Children, who would be as likely to be citizens of new Western States, as of the old States. On this consideration alone, we ought to make no such discrimination as was proposed by the motion.

Mr. Gerry. If some of our children should remove, others will stay behind, and he thought it incumbent on us to provide for their interests. There was a rage for emigration from the Eastern States to the Western Country and he did not wish those remaining behind to be at the mercy of the Emigrants. Besides foreigners are resorting to that Country, and it is uncertain what turn things may take there. — On the question for agreeing to the Motion of Mr. Gerry, 〈it passed in the negative.〉

Mas. ay. Cont. ay. N. J. no Pa. divd. Del: ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. [Ayes — 4; noes — 5; divided — 1.]

Mr. Rutlidge proposed to reconsider the 〈two propositions touching the originating of〉 money bills 〈in the first〉 the equality of votes in the second branch.

Mr. Sherman was for the question on the whole at once. It was he said a conciliatory plan, it had been considered in all its parts, a great deal of time had been spent on it, and if any part should now be altered, it would be necessary to go over the whole ground again.

Mr. L. Martin urged the question on the whole. He did not like many parts of it. He did not like having two branches, nor the inequality of votes in the 1st. branch. He was willing however to make trial of the plan, rather than do nothing. 4

Mr. Wilson traced the progress of the Report through its several stages, remarking yt when on the question concerning an equality of votes, the House was divided, our Constituents had they voted as their representatives did, would have stood as ⅔ agst. the equality, and ⅓ only in favor of it. This fact would ere long be known, and it will appear that this fundamental point has been carried by ⅓ agst. ⅔. What hopes will our Constituents entertain when they find that the essential principles of justice have been violated in the outset of the Governmt. As to the privilege of originating money bills, it was not considered by any as of much moment, and by many as improper in itself. He hoped both clauses wd. be reconsidered. The equality of votes was a point of such critical importance, that every opportunity ought to be allowed, for discussing and collecting the mind of the Convention on it.

Mr. L. Martin denies that there were ⅔ agst. the equality of votes. The States that please to call themselves large, are the weekest in the Union. Look at Masts. Look at Virga. Are they efficient States? He was for letting a separation take place if they desired it. He had rather there should be two Confederacies, than one founded on any other principle than an equality of votes in the 2d branch at least.

Mr Wilson was not surprised that those who say that a minority does more than the majority should say that that minority is stronger than the majority. He supposed the next assertion will be that they are richer also, though he hardly expected it would be persisted in when the States shall be called on for taxes troops —

Mr. Gerry also animadverted on Mr. L. Martins remarks on the weakness of Masts. He favored the reconsideration with a view not of destroying the equality of votes; but of providing that the States should vote per capita. which he said would prevent the delays inconveniences that had been experienced in Congs. and would give a national aspect Spirit to the management of business. He did not approve of a reconsideration of the clause relating to money bills. It was of great consequence. It was the corner stone of the accomodation. If any member of the Convention had the exclusive privilege of making propositions, would any one say that it would give him no advantage over other members. The Report was not altogether to his mind. But he would agree to it as it stood rather than throw it out altogether.

The reconsideration being tacitly agreed to

Mr. Pinkney moved that instead of an equality of votes the States should be represented in the 2d branch as follows: N. H. by. 2. members. Mas 4. R. I. 1. Cont. 3. N. Y. 3. N. J. 2. Pa. 4. Del 1. Md. 3. Virga. 5. N. C. 3. S. C. 3. Geo. 2. making in the whole 36. 5

Mr. Wilson seconds the motion

Mr. Dayton. The smaller States can never give up their equality. For himself he would in no event yield that security for their rights.

Mr. Sherman urged the equality of votes not so much as a security for the small States; as for the State Govts. which could not be preserved unless they were represented had a negative in the Genl. Government. He had no objection to the members in the 2d b. voting per capita, as had been suggested by (Mr. Gerry)

Mr — 〈Madison〉 concurred in the motion 〈of Mr. Pinkney〉 as a reasonable compromise.

Mr. Gerry said he should like the motion, but could see no hope of success. An accomodation must take place, and it was apparent from what had been seen that it could not do so on the ground of the motion. He was utterly against a partial confederacy, leaving other States to accede or not accede; as had been intimated.

Mr. King said it was always with regret that he differed from his colleagues, but it was his duty to differ from (Mr Gerry) on this occasion. He considered the proposed Government as substantially and formally, a General and National Government over the people of America. There never will be a case in which it will act as a federal Government on the States and not on the individual Citizens. And is it not a clear principle that in a free Govt. those who are to be the objects of a Govt. ought to influence the operations of it? What reason can be assigned why the same rule of representation sd. not prevail in the 2d. branch as in the 1st.? He could conceive none. On the contrary, every view of the subject that presented itself, seemed to require it. Two objections had been raised agst. it, drawn 1. from the terms of the existing compact. 2. from a supposed danger to the smaller States. — As to the first objection he thought it inapplicable. According to the existing confederation, the rule by which the public burdens is to be apportioned is fixed, and must be pursued. In the proposed Govermt. it cannot be fixed, because indirect taxation is to be substituted. The Legislature therefore will have full discretion to impose taxes in such modes proportions as they may judge expedient. As to the 2d. objection, he thought it of as little weight. The Genl. Governt. can never wish to intrude on the State Governts. There could be no temptation. None had been pointed out. In order to prevent the interference of measures which seemed most likely to happen, he would have no objection to throwing all the State debts into the federal debt, making one aggregate debt of about 70,000,000, of dollars, and leaving it to be discharged by the Genl. Govt. — According to the idea of securing the State Govts. there ought to be three distinct legislative branches. The 2d. was admitted to be necessary, and was actually meant, to check the 1st. branch, to give more wisdom, system, stability to the Govt. and ought clearly as it was to operate on the people to be proportioned to them. For the third purpose of securing the States, there ought then to be a 3d. branch, representing the States as such and guarding by equal votes their rights dignities. He would not pretend to be as thoroughly acquainted with his immediate Constituents as his colleagues, but it was his firm belief that Masts. would never be prevailed on to yield to an equality of votes. In N. York (he was sorry to be obliged to say any thing relative to that State in the absence of its representatives, but the occasion required it), in N. York he had seen that the most powerful argument used by the considerate opponents to the grant of the Impost to Congress, was pointed agst. the viccious constitution of Congs. with regard to representation suffrage. He was sure that no Govt. could last that was not founded on just principles. He preferred the doing of nothing, to an allowance of an equal vote to all the States. It would be better he thought to submit to a little more confusion convulsion, than to submit to such an evil. It was difficult to say what the views of different Gentlemen might be. Perhaps there might be some who thought no Governmt. co-extensive with the U. States could be established with a hope of its answering the purpose. Perhaps there might be other fixed opinions incompatible with the object we were pursuing. If there were, he thought it but candid that Gentlemen would speak out that we might understand one another.

Mr. Strong. The Convention had been much divided in opinion. In order to avoid the consequences of it, an accomodation had been proposed. A Committee had been appointed; and though some of the members of it were averse to an equality of votes, a Report has been made in favor of it. It is agreed on all hands that Congress are nearly at an end. If no Accommodation takes place, the Union itself must soon be dissolved. It has been suggested that if 〈we〉 can not come to any general agreement the principal States may form recommend a scheme of Government. But will the small States in that case ever accede it. Is it probable that the large States themselves will under such circumstances embrace and ratify it. He thought the small States had made a considerable concession in the article of money bills, and that 〈they〉 might naturally expect some concessions on the other side. From this view of the matter he was compelled to give his vote for the Report taken all together.

Mr 〈Madison〉 expressed his apprehensions that if the proper foundation of Governmt was destroyed, by substituting an equality in place of a proportional Representation, no 〈proper〉 superstructure would be raised. 6 If the small States really wish for a Government armed with the powers necessary to secure their liberties, and to enforce obedience on the larger members as well as on themselves he could not help thinking them extremely mistaken in their means. He reminded them of the consequences of laying the existing confederation on improper principles. All the principal parties to its compilation, joined immediately in mutilating fettering the Governmt. in such a manner that it has disappointed every hope placed on it. He appealed to the doctrine arguments used by themselves on 〈a former occasion.〉 It had been very properly observed by 〈Mr. Patterson〉 that Representation was an expedient by which the meeting of the people themselves was rendered unnecessary; and that the representatives ought therefore to bear a proportion to the votes which their constituents if convened, would respectively have. Was not this remark as applicable to one branch of the Representation as to the other? But it had been said that the Governt. would 〈in its operation〉 be partly federal, partly national; that altho’ in the latter respect the Representatives of the people ought to be in proportion to the people: yet in the former it ought to be according to the number of States. If there was any 〈solidity〉 7 in this distinction he was ready to abide by it, if there was none it ought to be abandoned. In all cases where the Genl. Governt. is to act on the people, let the people be represented and the votes be proportional. In all cases where the Governt. is to act on the States as such, in like manner as Congs. now act on them, let the States be represented the votes be equal. This was the true ground of compromise if there was any ground at all. But he denied that there was any ground. He called for a single instance in which the Genl. Govt. was not to operate on the people individually. The practicability of making laws, with coercive sanctions, for the States as political bodies, had been exploded on all hands. He observed that the people of the large States would in some way or other secure to themselves a weight proportioned to the importance accruing from their superior numbers. If they could not effect it by a proportional representation in the Govt. they would probably accede to no Govt. which did not in great measure depend for its efficacy on their voluntary cooperation; in which case they would indirectly secure their object. The existing confederacy proved that where the acts of the Genl. Govt. were to be executed by the particular Govts the latter had a weight in proportion to their importance No one would say that either in Congs. or out of Congs. Delaware had equal weight with Pensylva. If the latter was to supply ten times as much money as the former, and no compulsion could be used, it was of ten times more importance, that she should furnish voluntarily the supply. 8 In the Dutch Confederacy the votes of the Provinces were equal. But Holland, which supplies about half the money, governed the whole republic. He enumerated the objections agst an equality of votes in the 2d. branch, notwithstanding the proportional representation in the first. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate. 4. the evil instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality. 5. the perpetuity it would give to the 〈preponderance of the〉 Northn. agst. the Southn. Scale was a serious consideration. It seemed now to be pretty well understood that the real difference of interests lay, not between the large small but between the N. Southn. States. The institution of slavery its consequences formed the line of discrimination. There were 5 States on the South, 8 on the Northn. side of this line. Should a proportl. representation take place it was true, the N. side would still outnumber the other: but not in the same degree, at this time; and every day would tend towards an equilibrium.

Mr. Wilson would add a few words only. If equality in the 2d. 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 essentail 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 agst. the Genl. 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 agst. Congs. that they governed overmuch. 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 Govt. as they have done in Congs. 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 Govt and you have given us one more complex indeed, but having all the weakness of the former Governt. He was anxious for uniting all the States under one Governt. 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.

Mr. Elseworth asked two questions one of Mr. Wilson, whether he had ever seen a good measure fail in Congs. for want of a majority of States in its favor? He had himself never known such an instance: the other of Mr. 〈Madison〉 whether a negative lodged with a 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?

Mr. Sherman, signified that his expectation was that the Genl. 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 Mr Pinkney’s motion for allowing N. H. 2. Mas. 4. c — 〈it passed in the negative〉

Mas. no. Mr. King ay. Mr. Ghorum absent. Cont. no. N. J. no. Pa. ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. ay Geo. no. [Ayes — 4; noes — 6.]

Adjourned,

KING
Memorandum
July 15. 87

About twelve days since the convention appointed a Grand Comee. consisting of Gerry, Elsworth, Yates, Patterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge Baldwin to adjust the Representation in the two Brs. of the Legislature of the US — 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 Legislatr. 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 memb: viz. N H. 3: M. 8: R I. 1: C. 5: NY. 6: N J. 4: P. 8: D. 1: M. 6: V. 10: NC. 5: SC. 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 2d. 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 2d. 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. Ay —

This Question was taken and to my mortification by the Vote of Mass lost on the 14th. July — 9

MONDAY, JULY 16, 1787.

JOURNAL
Monday July 16. 1787.

The question being taken on the whole of the report from the grand Committee as amended

it passed in the affirmative [Ayes — 5; noes — 4; divided — 1.] and is as follows, namely,

Resolved — That in the original formation of the Legislature of the United States the first Branch thereof shall consist of Sixty five members — of which number

New Hampshire shall send Three
Massachusetts Eight
Rhode Island One
Connecticut Five
New York Six
New Jersey four
Pennsylvania Eight
Delaware One
Maryland Six
Virginia Ten
North Carolina Five
South Carolina Five
Georgia Three.

But as the present situation of the States may probably alter in the number of their inhabitants the Legislature of the United States shall be authorized from time to time to apportion the number of representatives: 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 United States the Legislature of the United States shall possess authority to regulate the number of representatives: 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 first Meeting of the Legislature of the United States, and once within the term of every Ten years afterwards of all the inhabitants of the United States in the manner and according to the ratio recommended by Congress in their resolution of April 18. 1783 — and that the Legislature of the United States shall proportion the direct Taxation accordingly.

Resolved That all Bills for raising or appropriating money, and for fixing the salaries of the Officers of the Government of the United States shall originate in the first Branch of the Legislature of the United States, and shall not be altered or amended by the second Branch — and that no money shall be drawn from the Public Treasury but in pursuance of appropriations to be originated by the first Branch.

Resolved That in the second Branch of the Legislature of the United States each State shall have an equal vote.

It was moved and seconded to agree to the first clause of the sixth resolution reported from the Committee of the whole House namely

“That the national Legislature ought to possess the legislative rights vested in Congress by the confederation”

which passed unanimously in the affirmative

It was moved and seconded to commit the second clause of the Sixth resolution reported from the Committee of the whole House

which passed in the negative [Ayes — 5; noes — 5.]

[To adjourn Ayes — 5; noes — 5.

To adjourn Ayes — 7; noes — 2; divided — 1.] 1 And then the House adjourned till to-morrow at 11 o’Clock A. M.

D ETAIL OF A YES AND N OES
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[156] dd aye aye no aye aye no aye no no To agree to the whole of the report from the grand Committee 5 4 1
[157] no aye no no no aye aye no aye aye To commit the second Clause of the 6. resolution from the Committee of the whole House. 5 5
[158] no no aye aye no aye aye aye no no To adjourn 5 5
[159] aye no aye aye no aye aye aye aye dd To adjourn 7 2 1

MADISON
Monday, July 16. In Convention

On the question for agreeing to the whole 〈Report as amended 〉 2 including the equality of votes in the 2d. branch. 〈it passed in the Affirmative〉

Mas. divided Mr. Gerry, Mr. Strong. ay. Mr. King Mr. Ghorum no. Cont. ay. N. J. ay. Pena. no. Del. ay. Md. ay. Va. no. N. C. ay. Mr. Spaight no S. C. no. Geo. no. [Ayes — 5; noes — 4; divided — 1.] 〈(Here enter the whole in the words entered in the Journal July 16)〉

〈The whole, thus passed is in the words following 3 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. Massts. 8. Rh. I. 1. Connt. 5. N. Y. 6. N. J. 4. Pena. 8. Del. 1. Maryd. 6. Virga. 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 Reps.; 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 Reps, 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 P Resolved that a Census be taken within six years from the 1st. 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 P Resolved, that all bills for raising or appropriating money, and for fixing the salaries of officers of the Govt. 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 2d. branch: and that no money shall be drawn from the public Treasury, but in pursuance of appropriations to be originated in the 1st — branch. P Resolvd. that in the 2d. branch of the Legislature of the U. S. each State shall have an equal vote”〉 4

The 6th. Resol: in the Report from the Come. of the whole House, which had been postponed in order to consider the 7 8th. Resol’ns; was now resumed. see the Resoln:

〈The 1s. member〉 “That the Natl. Legislature ought to 〈possess〉 5 the Legislative Rights vested in Congs. 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

Mr. 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.

Mr. 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.

Mr. Rutlidge, urged the objection started by Mr. 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 a commitment, 〈the States were equally divided〉

Mas. no. Cont. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. no. S. C. ay. Geo. ay: So it was lost. [Ayes — 5; noes — 5.]

Mr. Randolph. The vote of this morning (involving an equality of suffrage in 2d. branch) had embarrassed the business extremely. All the powers given in the Report from the Come. 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 agst. 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. * 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.

Mr. Patterson, thought with Mr. 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 2d. branch. If Mr Randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart.

Genl. Pinkney wished to know of Mr 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.

Mr. 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 tomorrow 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.

Mr. Patterson seconded the adjournment till tomorrow, 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. Cont. no. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. no. So it was lost. [Ayes — 5; noes — 5.]

Mr. Broome thought it his duty to declare his opinion agst. an adjournment sine die, as had been urged by Mr. Patterson. Such a measure he thought would be fatal. Something must be done by the Convention tho’ it should be by a bare majority.

Mr. Gerry observed that Masts. 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 shd be made, the State would now concur in the adjournmt.

Mr. Rutlidge could see no need of an adjournt. 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 Govt. 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.

Mr. Randolph Mr. King renewed the motion to adjourn till tomorrow.

On the question Mas. ay. Cont. no. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. divd. [Ayes — 7; noes — 2; divided — 1.]

Adjourned 7

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 2d. 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 so much as to the importance of that point, and as to the policy of risking 〈a failure of〉 a〈ny〉 general act of the Convention by inflexibly opposing it. Several of them supposing that no good Governnt 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 Govt. 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 agst. the equality of votes in the 2d. branch. 8

TUESDAY, JULY 17, 1787.

JOURNAL
Tuesday July 17. 1787.

It was moved and seconded to postpone the considn of the second clause of the Sixth resolution reported from the Committee of the whole House in order to take up the following

“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.”

which passed in the negative [Ayes — 2; noes — 8.] 1

It was moved and seconded to alter the second clause of the 6th esolution so as to read as follows, namely

“and moreover to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation

which passed in the affirmative [Ayes — 6; noes — 4.] 2

[To agree to the second clause of the 6. resolution as amended. Ayes — 8; noes — 2.] 3

On the question to agree to the following clause of the sixth resolution reported from the Committee of the whole House, namely,

“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”

it passed in the negative [Ayes — 3; noes — 7.]

It was moved and seconded to agree to the following resolution namely.

Resolved 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 passed unanimously in the affirmative

On the question to agree to the first clause of the 9th resolution reported from the Committee of the whole House namely “That a national Executive be instituted to consist of a Single Person”

it passed unanimously in the affirmative [Ayes — 10; noes — 0.]

It was moved and seconded to strike the words

“national legislature” out of the second clause of the 9th resolution, reported from the Committee of the whole House and to insert the words

“the Citizens of the United States”

which passed in the negative [Ayes — 1; noes — 9.]

It was moved and seconded to alter the second clause of the 9th resolution reported from the Committee of the whole House so as to read

“To be chosen by Electors to be appointed by the several Legislatures of the individual States”

which passed in the negative [Ayes — 2; noes — 8.]

It was moved and seconded to agree to the following clause namely

“to be chosen by the national Legislature

which passed unan: in the affirmative. [Ayes — 10; noes — 0.]

It was moved and seconded to postpone the consideration of the following clause

for the term of seven years”

which was unanimously agreed to

On the question to agree to the following clause namely

“with power to carry into effect the national laws”

it passed unanimously in ye affirmative

On the question to agree to the following clause namely

“to appoint to offices in cases not otherwise provided for”

it passed unanimously in the affirmative

It was moved and seconded to strike out the following words namely

“to be ineligible a second time”

which passed in the affirmative [Ayes — 6; noes — 4.]

It was moved and seconded to strike out the words “seven years” and to insert the words “good behaviour.”

which passed in the negative. [Ayes — 4; noes — 6.]

It was moved and seconded to strike out the words

“seven years”

which passed in the negative [Ayes — 4; noes — 6.] 4

And then the House adjourned till to-morrow at 11 o’Clock A. M.

D ETAIL OF A YES AND N OES
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[160] no aye no no no aye no no no no To postpone the 2 clause of ye 6th resolution, to take up a motion offered by Mr Sherman 2 8
[161] aye no aye aye aye aye no aye no no To agree to the amendment offered to the 6th resolution by Mr Bedford 6 4
[Beginning sixth loose sheet]
[162] aye aye aye aye aye aye aye aye no no To agree to the second clause of the 6. resolution as amended. 8 2
[163] aye no no no no no aye aye no no To agree to the last clause of the 6 resolution as reported from the Committee of the whole House. 3 7
[164] aye aye aye aye aye aye aye aye aye aye The National Executive to consist of a Single Person unanimous 10
[165] no no no aye no no no no no no That the National Executive be chosen by the Citizens of the United States. 1 9
[166] no no no no aye aye no no no no That the national Executive be chosen by Electors to be appointed by the individual Legislatures 2 8
[167] aye aye aye aye aye aye aye aye aye aye That the national Executive be chosen by the Legislature of the United States 10
[168] aye aye aye aye no aye no no no aye To strike out the words “to be ineligible a second time” 6 4
[169] no no aye aye aye no aye no no no To strike out the words “seven years” and insert the words “good behaviour” 4 6
[170] aye no no aye aye no no aye no no To strike out the words “seven years” 4 6

MADISON
Tuesday July 17. in Convention

Mr. Governr. 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 Govt. 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 Governt. as that it might be justly properly enabled to administer them. He feared if we proceded to a consideration of the powers, whilst the vote of yesterday including an equality of the States in the 2d. 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 6th. Resoln. in the Report of the Come. of the whole relating to the powers, which had been postponed in order to consider the 7 8th. relating to the Constitution of the, Natl. Legislature, was now resumed —

Mr. Sherman observed that it would be difficult to draw the line between the powers of the Genl. Legislatures, 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 “of 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 Govt. of such States only, and wherein the General〉 welfare of the U. States is not concerned.” 5

Mr. Wilson 2ded. the amendment as better expressing the general principle.

Mr Govr 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.

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

Mr. Govr. Morris remarked the omission, and inferred that for the deficencies of taxes on consumption, it must have been the meaning of Mr. Sherman, that the Genl. Govt. should recur to quotas requisitions, which are subversive of the idea of Govt.

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. 6

On Question on Mr. Sherman’s motion, 7 〈it passed in the negative〉

Mas. no. Cont. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. [Ayes — 2; noes — 8.]

Mr. Bedford moved that the 〈2d. 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 separately incompetent,” 〈or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation”.〉 8

Mr. Govr. Morris 2ds. 〈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 interest of the Union.

On question for agreeing to Mr. Bedford’s motion. 〈it passed in the affirmative.〉

Mas. ay. Cont. no. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. no. [Ayes — 6; noes — 4.]

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

Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. no. [Ayes — 8; noes — 2.]

〈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 ye Union”〉 9

Mr. Govr. Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative authority should be given to the Genl. 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 inadmissable. Shall all the laws of the States be sent up to the Genl. Legislature before they shall be permitted to operate?

Mr. 〈Madison,〉 considered the negative on the laws of the States as essential to the efficacy security of the Genl. Govt. The necessity of a general Govt. 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 can pass laws which will accomplish their injurious objects before they can be repealed by the Genl Legislre. 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 dependt. on the Legislatures. In Georgia 10 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 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 sometines misapplied thro’ ignorance or a partiality to one particular part of ye. empire: but we have not the same reason to fear such misapplications in our System. As to the sending all laws up to the Natl. 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.

Mr. Govr. 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 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 operative.

Mr. 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. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. ay. N. C. ay. S. C. no. Geo. no. [Ayes — 3; noes — 7.] 11

〈Mr. 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:.〉 12

9th. Resol: “that Natl. Executive consist of a single person.” Agd. to nem. con.

“To be chosen by the National Legisl:”

Mr. Governr. Morris was pointedly agst. 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 Cont. 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 U. S”〉

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 Legislre. A majority of voices may be made necessary to constitute an election.

Mr. Wilson. two arguments have been urged agst. 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 dependents 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 2d. argt. is that a majority of the people would never concur. It might be answered that the concurrence of a majority of 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 Masts. 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 agst. an absolute election by the Legislre. 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.

Mr. 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 Natl. 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. Govr. 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 their 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 Govr. 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 Natl. 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 wch 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. —

Mr Wilson. could not see the contrariety stated (by Col. Mason) The Legislre. might deserve confidence in some respects, and distrust in others. In acts which were to affect them yr. Constituents precisely alike confidence was due. In others jealousy was warranted. The appointment to great offices, when the Legislre might feel many motives, not common to the public confidence was surely misplaced. This branch of business it was notorious, was 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 appt. 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 succede. This will not be Virga. however. Her slaves will have no suffrage. As the Salary of the Executive will be fixed, and he will not be eligible a 2d. 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. Cont. no. N. J. no. Pa. ay. Del. no. Md. no. Va. no. N. C. no. S. C. no. Geo. no. [Ayes — 1; noes — 9.]

Mr. L. Martin moved that the Executive be chosen by Electors appointed by the 〈several〉 Legislature〈s of the individual States.〉 13

Mr. Broome 2ds. On the Question, 〈it passed in the negative.〉

Mas. no. Cont. no. N. J. no. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. [Ayes — 2; noes — 8.]

On the question on the words “to be chosen by the Nationl. Legislature” 〈it passed unanimously in the affirmative.〉 14

“For the term of seven years” — postponed nem. con. on motion of Mr. Houston Gov. Morris.

“to carry into execution the nationl. 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 2ds. the motion.

Mr. Govr. 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 Mr. Houston, 〈it passed in the affirmative.〉

Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. no. N. C. no. S. C. no. Geo. ay. [Ayes — 6; noes — 4.]

“For the term of 7 years” resumed

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

Docr. McClurg moved * 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 for ever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department.

Mr. Govr. Morris 2ded. 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. Broome 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 behavior as far as will be necessary. If he behaves well he will be continued; if otherwise, displaced on a succeeding election.

Mr. Madison. * 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 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 2d. 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 shd. 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 impeachmts. 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 agst. a dangerous union of the Legislative Executive departments.

Col. Mason. This motion was made some time ago, negatived by a very large majority. He trusted that it wd. be again negatived. It wd. 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 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 Govt. 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. Govr. Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchial Govt. was to establish such a Repub. Govt. as wd. make the people happy and prevent a desire of change.

Docr. McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to Republican Govt. 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.〉 16

Mas. no. Ct. no. N. J. ay. Pa. ay. Del. ay. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. * [Ayes — 4; noes — 6.]

On the motion “to strike out seven years” 〈it passed in the negative.〉

Mas. ay. Ct. no. N. J. no. Pa. ay. Del. ay. Md. no. Va. no. N. C. ay. S. C. no. Geo. no.

〈It was now unanimously agreed that the vote which had struck out the words “to be ineligible a second time” should be reconsidered tomorrow.〉 17

Adjd. 18

WEDNESDAY, JULY 18, 1787.

JOURNAL
Wednesday July 18. 1787.

[To reconsider the clause which makes the Executive reeligible Ayes — 8; noes — 0.

To reconsider immediately Ayes — 6; noes — 2.

To reconsider the clause to-morrow Ayes — 8; noes —0.] 1

It was moved and seconded to postpone the consideration of the following clause in the 9th resolution reported from the Committee of the whole House namely

for the term of seven years”

which passed unanimously in ye affirmative

It was moved and seconded to postpone the consideration of the remaining clause of the 9th and the 10th resolution in order to take up the 11th resolution.

which passed in the affirmative [Ayes — 4; noes — 3; divided — 1.]

On the question to agree to the following clause of the 11th resolution namely

“That a national Judiciary be established”

it passed unanimously in the affirmative

On the question to agree to the following clause of the 11th resolution namely

“To consist of One supreme Tribunal

it passed unanimously in the affirmative

It was moved and seconded to strike out the words

“second branch of the national Legislature” and to insert the words “national executive” in the 11. resolution

which passed in the negative. [Ayes — 2; noes — 6.]

It was moved and seconded to alter the 3rd cause of the 11th resolution so as to read as follows, namely,

The Judges of which shall be nominated and appointed by the Executive by and with the advice and consent of the second Branch of the Legislature of the United States — and every such nomination shall be made at least days prior to such appointment

which passed in the negative [Ayes — 4; noes — 4.]

It was moved and seconded to alter the 3rd clause of the 11th resolution so as to read as follows namely

That the Judges shall be nominated by the Executive and such nomination shall become an appointment if not disagreed to within days by two thirds of the second branch of the Legislature.

It was moved and seconded to postpone the consideration of the last amendment

which was unanimously agreed to

On the question to agree to the following clause of the 11th resolution namely “to hold their Offices during good behaviour”

it passed unanimously in the affirmative

On the question to agree to the following clause of the eleventh resolution namely

“to receive, punctually, at stated times a fixed compensation for their services”

it passed unanimously in the affirmative

It was moved and seconded to strike the words

“Encrease or” out of the eleventh resolution

which passed in the affirmative [Ayes — 6; noes — 2.]

On the question to agree to the clause as amended namely “to receive, punctually, at stated times, a fixed compensation for their services in which no diminution shall be made so as to affect the Persons actually in Office at the time of such diminution”

it passed unanimously in the affirmative

On the question to agree to the 12th resolution namely

“That the national Legislature be empowered to appoint inferior Tribunals”

it passed unanimously in the affirmative [Ayes — 9; noes — 0.]

It was moved and seconded to strike the words

“impeachments of national Officers” out of the 13th resolution

which passed unanimously in the affirmative

It was moved and seconded to alter the 13th resolution so as to read as follows namely

That the jurisdiction of the national Judiciary shall extend to cases arising under laws passed by the general Legislature, and to such other questions as involve the National peace and harmony

which passed unanimously in the affirmative

On the question to agree to the 14 resolution namely

Resolved That provision ought to be made for the admission of States lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise with the consent of a number of voices in the national Legislature less than the whole.

it passed unanimously in the affirmative

On the question to agree to the first clause of the 15th resolution reported from the Committee of the whole House

it passed in the negative [Ayes — 2; noes — 7.]

On the question to agree to the last clause of the 15th resolution

it passed unanimously in the negative

It was moved and seconded to alter the sixteenth resolution so as to read as follows namely

That a republican form of Government shall be guaranteed to each State — and that each State shall be protected against foreign and domestic violence

which passed in the affirmative

[To agree to the 16th resolution as amended Ayes — 9; noes — 0.] 2

And then the House adjourned till to-morrow at 11 o’Clock A. M.

D ETAIL OF A YES AND N OES
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[171] aye aye aye aye aye aye aye aye To reconsider the clause which makes the Executive reeligible 8
[172] aye aye no aye aye no aye aye To reconsider immediately 6 2
[173] aye aye aye aye aye aye aye aye To reconsider the clause to-morrow 8
[174] aye aye no aye aye no dd no To postpone the considn of the remaining clauses of the 9 resolution, and the 10 resolution to take up ye 11th 4 3 1
[175] aye no aye no no no no no That the Judges shall be appointed by the National Executive 2 6
[176] aye no aye no aye aye no no That the Judges shall be nominated and appointed by the Executive by wt the advice and consent of ye 2 branch 4 4
[177] aye aye aye aye aye no no aye To strike out the words “encrease or” 6 2
[178] aye aye aye aye aye aye aye aye aye That the National Legislature be empowered to appoint inferior Tribunals 9
[179] no no no no no aye aye no no To agree to the first clause of the 15 resolution 2 7
[180] aye aye aye aye aye aye aye aye aye To agree to the 16th resolution as amended 9

MADISON
Wednesday July 18. in Convention

On motion of Mr. L. Martin 〈to fix tomorrow〉 for reconsidering the vote concerning “eligibility of Executive. a 2d time” 〈it passed in the affirmative.〉 3

Mas. ay. Cont. ay. N. J. absent. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C ay. Geo absent. [Ayes — 8; noes — 0; absent — 2.]

The residue of Resol. 9. concerning the Executive was postpd. till tomorrow. 4

Resol. 10. that Executive shl. have a right to negative legislative acts not afterwards passed by ⅔ of each branch. Agreed to nem. con. 5

Resol. 11. “that a Natl. Judiciary be estabd. to consist of one supreme tribunal.” agd. to nem. con.

“The Judges of which to be appointd. by the 2d. branch of the Natl. Legislature.”

Mr. Ghorum, wd. prefer an appointment by the 2d branch to an appointmt. 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 Execuve. with the advice consent of the 2d branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, was found to answer perfectly well.

Mr. Wilson, still wd. prefer an an appointmt. by the Executive; but if that could not be attained, wd. prefer in the next place, the mode suggested by Mr. Ghorum. He thought it his duty however to move in the first instance “that the Judges be appointed by the Executive.” Mr. Govr. Morris 2ded. the motion.

Mr. L. Martin was strenuous for an appt. by the 2d. branch. Being taken from all the States it wd. be best informed of characters most capable of making a fit choice.

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

Mr 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 agst. referring the appointment to the Executive. He mentioned as one, that as the seat of Govt. must be in some one State, and 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.

Mr. 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 Govt where they reside, as the Executive. If they can not 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 responsibly 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.

Mr. Govr. Morris supposed it would be improper for an impeachmt. 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 wd. be much about the seat of Govt 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 agst. the motion before the House.

Mr. M〈adison〉, suggested that the Judges might be appointed by the Executives with the concurrence of 〈⅓ at least〉 6 of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

Mr. 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.

Mr. Randolph. It is true that when the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it. Yet he had rather leave the appointmt. 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〉 appts. would be more diffusive if they depended on the Senate, the members of which wd. 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

Mr. Bedford thought there were solid reasons agst. 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.

Mr. 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 2d. branch〉 7

Mas. ay. Cont. no. Pa. ay. Del. no. Md. no Va. no. N. C. no. S. C. no — 〈Geo. absent.〉 [Ayes — 2; noes — 6; absent — 1.]

Mr. Ghorum moved “that the Judges be 〈nominated and appointed〉 by the Executive, by with the advice consent of the 2d branch 〈 every such nomination shall be made at least days prior to such appointment”〉 7 . This mode he said had been ratified by the experience of 140 years in Massachussts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing.

Mr. Govr. Morris 2ded. supported the motion.

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

Question on Mr. Ghorum’s motion

Mas. ay. Con. no. Pa ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. no. Geo. 〈absent.〉 [Ayes — 4; noes — 4; absent — 1.]

〈Mr.〉 Mr〈adison〉 moved that the Judges should be nominated by the Executive, such nomination should become an appointment 〈if not〉 8 disagreed to within days by ⅔ of the 2d. branch. Mr. Govr. 〈Morris〉 2ded. the motion. By common consent the consideration of it was postponed till tomorrow.

“〈To hold their offices during good behavior” “to receive fixed salaries” agreed to nem: con:〉 9

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

Mr. Govr. 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.

Docr. 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.

Mr. 〈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 suffered, if it can be prevented. The variations in the value of money, may be guarded agst. 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 be easily so contrived as not to effect persons in office. 10

Mr. Govr. 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” 11

Mas. ay. Cont. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. 〈absent〉 [Ayes — 6; noes — 2; absent — 1.] 〈The whole clause as amended was then agreed to nem: con:〉 12

12. Resol: “that Natl. 〈Legislature〉 be empowered to appoint inferior tribunals”

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

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

Mr. 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 Natl. Legislature effectual

Mr. 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.

Mr. Govr. Morris urged also the necessity of such a provision

Mr. 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. 13

On question for agreeing to 12. Resol: 〈empowering the National Legislature to appoint〉 14 “inferior tribunals”. Agd. to nem. con.

13. Resol: 〈“Impeachments of national officers” were struck out “on motion for the purpose.〉 14 “The jurisdiction of Natl. Judiciary”. Several criticisms having been made on the definition; it was proposed by Mr 〈Madison〉 so to alter as to read thus — “that the jurisdiction shall extend to all cases arising under the Natl. laws: And to such other questions as may involve the Natl. peace harmony.” which was agreed to nem. con.

Resol. 14. 〈providing for the admission of new States〉 14 Agreed to nem. con.

Resol. 15. that provision ought to be made for the continuance of Congs. c. for the completion of their engagements.”

Mr. Govr. Morris thought the assumption of their engagements might as well be omitted; and that Congs. ought not to be continued till all the States should adopt the reform; since it may become expedient to give effect to it whenever a certain number of States shall adopt it.

Mr. 〈Madison〉 the clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist in the interval between the adoption of the New Govt. and the commencement of its operation, if the old Govt. should cease on the first of these events.

Mr. Wilson did not entirely approve of the manner in which the clause relating to the engagements of Congs. was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the Confederacy might be dissolved along with the Governt. under which they were contracted.

On the question on the 1st part-relating to continuance of Congs.”

Mass. no-Cont. no. Pa. no. Del-no. Md. no. Va. ay. N. C. ay. S. C. * ay. Geo. no. [Ayes — 3; noes — 6.]

The 2d. part as to completion of their engagements. disagd. to. nem. con.

Resol. 16. “That a Republican Constitution its existing laws ought to be guaranteid to each State by the U. States.”

Mr. Govr. Morris — thought the Resol: very objectionable. He should be very unwilling that such laws as exist in R. Island should be guaranteid.

Mr. Wilson. The object is merely to secure the States agst. dangerous commotions, insurrections and rebellions.

Col. Mason. If the Genl Govt. should have no right to suppress rebellions agst. particular States, it will be in a bad situation indeed. As Rebellions agst. itself originate in agst. individual States, it must remain a passive Spectator of its own subversion.

Mr. Randolph. The Resoln. has 2. Objects. 1. to secure Republican Government. 2. to suppress domestic commotions. He urged the necessity of both these provisions.

Mr. 〈Madison〉 moved to substitute “that the Constitutional authority of the States shall be guarantied to them respectively agst. domestic as well as foreign violence.”

Docr. McClurg seconded the motion.

Mr. Houston was afraid of perpetuating the existing Constitutions of the States. That of Georgia was a very bad one, and he hoped would be revised amended. It may also be difficult for the Genl. Govt. to decide between contending parties each of which claim the sanction of the Constitution.

Mr. L. Martin was for leaving the States to suppress Rebellions themselves.

Mr. Ghorum thought it strange that a Rebellion should be known to exist in the Empire, and the Genl. Govt. shd. be restrained from interposing to subdue it, At this rate an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partizans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole the Genl. Govt. be compelled to remain an inactive witness of its own destruction. With regard to different parties in a State; as long as they confine their disputes to words they will be harmless to the Genl. Govt. to each other. If they appeal to the sword it will then be necessary for the Genl. Govt., however difficult it may be to decide on the merits of their contest, to interpose put an end to it.

Mr. Carrol. Some such provision is essential. Every State ought to wish for it. It has been doubted whether it is a casus federis at present. And no room ought to be left for such a doubt hereafter.

Mr. Randolph moved to add as amendt. to the motion; “and that no State be at liberty to form any other than a Republican Govt.” Mr. 〈Madison〉 seconded the motion

Mr. Rutlidge thought it unnecessary to insert any guarantee. No doubt could be entertained but that Congs. had the authority if they had the means to co-operate with any State in subduing a rebellion. It was would be involved in the nature of the thing.

Mr. Wilson moved as a better expression of the idea, “that a Republican 〈form of Governmt. shall〉 be guarantied to each State that each State shall be protected agst. foreign domestic violence. 15

This seeming to be well received, Mr. 〈Madison〉 Mr. Randolph withdrew their propositions on the Question for agreeing to Mr. Wilson’s motion it passed nem. con.

Adjd. 16

THURSDAY, JULY 19, 1787.

JOURNAL
Thursday July 19. 1787.

It was moved and seconded to reconsider the several clauses of the 9th resolution which respect the appointment, duration, and eligibility of the National Executive.

and unanimously agreed to reconsider immediately

[Ayes — 10; noes — 0.] 1

It was moved and seconded to agree to the following proposition, 2 namely,

“to be chosen by Electors appointed for that purpose by the Legislatures of the States, in the following proportion

One person from each State whose numbers, according to the ratio fixed in the resolution, shall not exceed 100,000 — Two from each of the others, whose numbers shall not exceed 300,000 — and Three from each of the rest.

On the question to agree to the following clause namely

“To be chosen by electors appointed for that purpose by the Legislatures of the States”

it passed in the affirmative. [Ayes — 6; noes—3; divided—1.

Ayes — 8; noes — 2.] 3

It was agreed to postpone the consideration of the remainder of the proposition.

It was moved and seconded to agree to the following clause, namely,

“for the term of seven years”

which passed in the negative [Ayes — 3; noes — 5; divided — 2.] 4

On the question to agree to the following clause namely

“for the term of six years”

it passed in the affirmative [Ayes — 9; noes — 1.] 5

On the question to restore the words

“to be ineligible a second time”

it passed in the negative. [Ayes — 2; noes — 8]. 6

And then the House adjourned till to-morrow at 11 o’Clock A. M.

D ETAIL OF A YES AND N OES
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[181] aye aye aye aye aye aye aye no aye aye To reconsider all the clauses of the 9th resolution except the first. — No Caroa withdraw their negative. 9 1
[182] dd aye aye aye aye aye aye no no no “To be chosen by electors appointed for that purpose” 6 3 1
[183] aye aye aye aye aye aye no aye no aye “by the Legislatures of the States” 8 2
[184] no no no no no no no aye aye no To restore the words “to be ineligible a second time” 2 8
[185] dd no aye no no no no dd aye aye for “seven years” 3 5 2
[186] aye aye aye aye no aye aye aye aye aye for “six years” 9 1

MADISON
Thursday, July. 19. in Convention.

On reconsideration of the vote rendering the Executive re-eligible a 2d. time,

Mr. Martin moved to reinstate the words “to be ineligible a 2d. time”.

Mr. Governeur Morris. It is necessary to take into one view all that relates to the establishment of the Executive; on the due formation of which must depend the efficacy utility of the Union among the present and future States. It has been a maxim in political Science that Republican Government is not adapted to a large extent of Country, because the energy of the Executive Magistracy can not reach the extreme parts of it. Our Country is an extensive one. We must either then renounce the blessings of the Union, or provide an Executive with sufficient vigor to pervade every part of it. This subject was of so much importance that he hoped to be indulged in an extensive view of it. One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, agst. Legislative tyranny, against the Great the wealthy who in the course of things will necessarily compose — the Legislative body. Wealth tends to corrupt the mind to nourish its love of power, and to stimulate it to oppression. History proves this to be the spirit of the opulent. The check provided in the 2d. branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1st. branch to legislate too much to run into projects of paper money similar expedients. It is no check on Legislative tyranny. On the contrary it may favor it, and if the 1st. branch can be seduced may find the means of success. The Executive therefore ought to be so constituted as to be the great protector of the Mass of the people. — It is the duty of the Executive to appoint the officers to command the forces of the Republic: to appoint 1. ministerial officers for the administration of public affairs. 2. Officers for the dispensation of Justice — Who will be the best Judges whether these appointments be well made? The people at large, who will know, will see, will feel the effects of them — Again who can judge so well of the discharge of military duties for the protection security of the people, as the people themselves who are to be protected secured? He finds too that the Executive is not to be re-eligible. What effect will this have? 1. it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. It may give a dangerous turn to one of the strongest passions in the human breast. The love of fame is the great spring to noble illustrious actions. Shut the Civil road to Glory he may be compelled to seek it by the sword. 2. It will tempt him to make the most of the Short space of time allotted him, to accumulate wealth and provide for his friends. 3. It will produce violations of the very constitution it is meant to secure. In moments of pressing danger the tried abilities and established character of a favorite Magistrate will prevail over respect for the forms of the Constitution. The Executive is also to be impeachable. This is a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature. These then are the faults of the Executive establishment as now proposed. Can no better establishmt. be devised? If he is to be the Guardian of the people let him be appointed by the people? If he is to be a check on the Legislature let him not be impeachable. Let him be of short duration, that he may with propriety be re-eligible.—It has been said that the candidates for this office will not be known to the people. If they be known to the Legislature, they must have such a notoriety and eminence of Character, that they cannot possibly be unknown to the people at large. It cannot be possible that a man shall have sufficiently distinguished himself to merit this high trust without having his character proclaimed by fame throughout the Empire. As to the danger from an unimpeachable magistrate he could not regard it as formidable. There must be certain great officers of State; a minister of finance, of war, of foreign affairs c. These he presumes will exercise their functions in subordination to the Executive, and will be amenable by impeachment to the public Justice. Without these ministers the Executive can do nothing of consequence. He suggested a biennial election of the Executive at the time of electing the 1st. branch, and the Executive to hold over, so as to prevent any interregnum in the Administration. An election by the people at large throughout so great an extent of country could not be influenced, by those little combinations and those momentary lies which often decide popular elections within a narrow sphere. It will probably, be objected that the election will be influenced by the members of the Legislature; particularly of the 1st. branch, and that it will be nearly the same thing with an election by the Legislature itself. It could not be denied that such an influence would exist. But it might be answered that as the Legislature or the candidates for it would be divided, the enmity of one part would counteract the friendship of another; that if the administration of the Executive were good, it would be unpopular to oppose his re-election, if bad it ought to be opposed a reappointmt. prevented; and lastly that in every view this indirect dependence on the favor of the Legislature could not be so mischievous as a direct dependence for his appointment. He saw no alternative for making the Executive independent of the Legislature but either to give him his office for life, or make him eligible by the people. — Again, it might be objected that two years would be too short a duration. But he believes that as long as he should behave himself well, he would be continued in his place. The extent of the Country would secure his re-election agst the factions discontents of particular States. It deserved consideration also that such an ingredient in the plan would render it extremely palatable to the people. These were the general ideas which occurred to him on the subject, and which led him to wish move that the 〈whole constitution of the Executive〉 might undergo reconsideration.

Mr. Randolph urged the motion of Mr. L. Martin for restoring the words making the Executive ineligible a 2d. time. If he ought to be independent, he should not be left under a temptation to court a re-appointment. If he should be re-appointable by the Legislature, he will be no check on it. His revisionary power will be of no avail. He had always thought contended as he still did that the danger apprehended by the little States was chimerical, but those who thought otherwise ought to be peculiarly anxious for the motion. If the Executive be appointed, as has been determined, by the Legislature, he will probably be appointed either by joint ballot of both houses, or be nominated by the 1st. and appointed by the 2d. branch. In either case the large States will preponderate. If he is to court the same influence for his re-appointment, will he 〈not〉 make his revisionary power. and all the other functions of his administration subservient to the views of the large States. Besides — is there not great reason to apprehend that in case he should be re-eligible, a false complaisance in the Legislature might lead them to continue an unfit man in office in preference to a fit one. It has been said that a constitutional bar to reappointment will inspire unconstitutional endeavours to perpetuate himself. It may be answered that his endeavous can have no effect unless the people be corrupt to such a degree as to render all precautions hopeless: to which may be added that this argument supposes him to be more powerful dangerous, than other arguments which have been used, admit, and consequently calls for stronger fetters on his authority. He thought an election by the Legislature with an incapacity to be elected a second time would be more acceptable to the people that the plan suggested by Mr. Govr. Morris. 7

Mr. King. did not like the ineligibility. He thought there was great force in the remark of Mr. Sherman, that he who has proved himself to be most fit for an Office, ought not to be excluded by the constitution from holding it. He would therefore prefer any other reasonable plan that could be substituted. He was much disposed to think that in such cases the people at large would chuse wisely. There was indeed some difficulty arising from the improbability of a general concurrence of the people in favor of any one man. On the whole he was of opinion that an appointment by electors chosen by the people for the purpose, would be liable to fewest objections.

Mr. Patterson’s ideas nearly coincided he said with those of Mr. King. He proposed that the Executive should be appointed by Electors to be chosen by the States in a ratio that would allow one elector to the smallest and three to the largest States.

Mr. Wilson. It seems to be the unanimous sense that the Executive should not be appointed by the Legislature, unless he be rendered in-eligible a 2d. time: he perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people.

Mr. 〈Madison〉 If it be a fundamental principle of free Govt. that the Legislative, Executive Judiciary powers should be separately exercised; it is equally so that they be independently exercised. There is the same perhaps greater reason why the Executive shd. be independent of the Legislature, than why the Judiciary should: A coalition of the two former powers would be more immediately certainly dangerous to public liberty. It is essential then that the appointment of the Executive should either be drawn from some source, or held by some tenure, that will give him a free agency with regard to the Legislature. This could not be if he was to be appointable from time to time by the Legislature. It was not clear that an appointment in the 1st. instance 〈even〉 with an ineligibility afterwards would not establish an improper connection between the two departments. Certain it was that the appointment would be attended with intrigues and contentions that ought not to be unnecessarily admitted. He was disposed for these reasons to refer the appointment to some other Source. The people at large was in his opinion the fittest in itself. 8 It would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character. The people generally could only know vote for some Citizen whose merits had rendered him an object of general attention esteem. There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than 9 the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.

Mr. Gerry. If the Executive is to be be elected by the Legislature he certainly ought not to be re-eligible. This would make him absolutely dependent. He was agst. a popular election. The people are uninformed, and would be misled by a few designing men. He urged the expediency of an appointment of the Executive by Electors to be chosen by the State Executives. The people of the States will then choose the 1st. branch: The legislatures of the States the 2nd. branch of the National Legislature, and the Executives of the States, the National Executive — This he thought would form a strong attachnt. in the States to the National System. The popular mode of electing the chief Magistrate would certainly be the worst of all. If he should be so elected should do his duty, he will be turned out for it like Govr Bowdoin in Massts President Sullivan in N. Hamshire.

On the question on Mr Govr. Morris motion to reconsider generally the Constitution of the Executive —

Mas. ay. Ct. ay. N. J. ay. all the others ay.

Mr. Elseworth moved to strike out the appointmt. by the Natl. Legislature, and insert “to be chosen by electors appointed by the Legislatures of the States in the following ratio; towit—one for each State not exceeding 200,000 10 inhabts. two for each above yt. number not exceeding 300,000. and, three for each State exceeding 300,000. — Mr. Broome 2ded. the motion

Mr Rutlidge was opposed to all the modes except the appointmt. by the Natl. Legislature. He will be sufficiently independent, if he be not re-eligible

Mr. Gerry preferred the motion of Mr. Elseworth to an appointmt. by the Natl. Legislature, or by the people; tho’ not to an appt. by the State Executives. He moved that the electors proposed by Mr. E. should be 25 in number, and allotted in the following proportion. to N. H. 1. to Mas. 3. to R. I. 1. to. Cont. 2-to N. Y. 2-N. J. 2. Pa. 3. Del. 1. Md. 2. Va. 3. N. C. 2. S. C. 2. Geo. 1.

The question as moved by Mr. Elseworth being divided, on the 1st. part shall ye. Natl. Executive be appointed by Electors?

Mas-divd. Cont. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay- N. C. no. S. C. no. Geo. no. [Ayes — 6; noes — 3; divided — 1.]

On 2d. part shall the Electors be chosen by State Legislatures?

Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. ay. [Ayes — 8; noes — 2.]

The part relating to the ratio in which the States sd. chuse electors was postponed nem. con.

Mr. L. Martin moved that the Executive be ineligible a 2d. time.

Mr. Williamson 2ds. the motion. He had no great confidence in the Electors to be chosen for the special purpose. They would not be the most respectable citizens; but persons not occupied in the high offices of Govt. They would be liable to undue influence, which might the more readily be practiced as some of them will probably be in appointment 6 or 8 months before the object of it comes on.

Mr. Elseworth supposed any persons might be appointed Electors, excepting solely, members of the Natl. Legislature.

On the question shall he be ineligible a 2d. time?

Mas. no. Ct. no. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. ay. S. C. ay. Geo. no. [Ayes — 2; noes — 8.]

On the question shall the Executive continue for 7 years? 〈It passed in the negative〉 Mas. divd. Cont. ay. * N — J. no. * Pa. no. Del. no. Md. no. Va. no. N. C. divd. S. C. ay. Geo. ay. [Ayes — 3; noes — 5; divided — 2.]

Mr. King was afraid we shd. shorten the term too much.

Mr. Govr Morris was for a short term, in order to avoid impeachts. which wd. be otherwise necessary.

Mr. Butler was agst. a frequency of the elections. Geo S. C. were too distant to send electors often.

Mr. Elseworth was for 6 years. If the elections be too frequent, the Executive will not be firm eno’. There must be duties which will make him unpopular for the moment. There will be outs as well as ins. His administration therefore will be attacked and misrepresented.

Mr. Williamson was for 6 years. The expence will be considerable ought not to be unnecessarily repeated. If the Elections are too frequent, the best men will not undertake the service and those of an inferior character will be liable to be corrupted.

On question for 6 years?

Mas. ay. Cont. ay. N. J. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Ayes — 9; noes — 1.]

Adjourned

FRIDAY, JULY 20, 1787.

JOURNAL
Friday July 20. 1787.

It was moved and seconded to postpone the consideration of the clause, respecting the number of Electors, entered on the Journal yesterday in order to take up the following namely,

Resolved that for the first election of the supreme Executive the proportion of Electors shall be as follows, namely

New Hampshire 1
Massachusetts 3
Rhode Island 1
Connecticut 2
New York 2
New Jersey 2
Pennsylvania 3
Delaware 1
Maryland 2
Virginia 3
North Carolina 2
South Carolina 2
Georgia 1

in all 25. Electors.

On the question to postpone

it passed in the affirmative [Ayes—6; noes—4.] 1

It was moved and seconded to refer the last motion to a Committee

which passed in the negative. [Ayes—3; noes—7.] 2

It was moved and seconded to add one Elector to the States of New Hampshire and Georgia.

which passed in the affirmative. [Ayes—6; noes—4.]

The last motion having been misunderstood, it was moved and seconded that it be put again — and on the question to give an additional Elector to each of the States of New Hampshire and Georgia

it passed in the negative. [Ayes — 3; noes — 7.]

On the question to agree to the above resolution respecting the first election of the supreme Executive

it passed in the affirmative. [Ayes — 6; noes — 4.]

It was moved and seconded to agree to the following resolution Resolved That the Electors respectively shall not be Members of the National Legislature, or Officers of the Union, or eligible to the office of supreme Magistrate

which passed in the affirmative.

It was moved and seconded to agree to the following clause of the 9th resolution reported from the Committee of the whole House namely

“To be removable on impeachment and conviction of malpractice or neglect of duty”

It was moved and seconded to postpone the consideration of the last motion

which passed in the negative. [Ayes — 2; noes — 8.]

It was moved and seconded to agree to the clause

which passed in the affirmative [Ayes — 8; noes — 2.]

It was moved and seconded to agree to the following clause namely

“to receive a fixed compensation for the devotion of his time to public service”

which passed unan: in the affirmative [Ayes — 10; noes — 0.]

It was moved and seconded to agree to the following clause, namely

“to be paid out of the national Treasury”

which passed unan: in the affirmative [Ayes — 10; noes — 0.] 3

D ETAIL OF A YES AND N OES
3 [End of sixth loose sheet]
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[187] aye no no aye no no aye aye aye aye To postpone Mr Ellsworth’s motion for electing the Executive to take up Mr Gerry’s 6 4
[188] no no aye no aye aye no no no no To refer Mr Gerry’s motion to a Committee of detail 3 7
[189] no aye aye aye no no aye no aye aye To add One Elector to the States of Georgia and New Hampshire 6 4
[190] no aye no no no no no no aye aye The last motion repeated 3 7
[191] aye aye no aye no no aye aye aye no To agree to the proposition for the first election of the Supreme Executive, offered by Mr Gerry. 6 4
[192] aye no no no no no no no aye no To postpone the consideration of the clause which respects the impeachment of the Executive 2 8
[193] no aye aye aye aye aye aye aye no aye To agree to the clause respecting the impeachmt of the Executive. 8 2
[194] aye aye aye aye aye aye aye aye aye aye To receive a fixed compensation for the devotion of his time to Public service. unanimous 10
[195] 3 aye aye no aye aye aye aye aye aye aye To be paid out of the national Treasury unanimous 14 sect. of the 6 article 9 1
[196] aye aye aye aye aye aye aye aye aye aye
[197] aye no aye aye aye aye aye no aye aye To adjourn

[To adjourn Ayes — 8; noes — 2.] 4

and then the House adjourned till to-morrow at 11 o’Clock A. M.

MADISON
Friday July 20 — in Convention

The 〈postponed〉 Ratio of Electors for appointing the Executive; to wit 1 for each State whose inhabitants do not exceed 100,000, 5 c. being taken up.

× Mr. 〈Madison〉 observed that this would make in time all or nearly all the the States equal. Since there were few that would not in time contain the number of inhabitants entitling them to 3 Electors; that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the States.

Mr. Gerry moved that in the 1st. instance the Electors should be allotted to the States in the following ratio: to N. H. 1. Mas. 3. R. I. 1. Cont. 2. N. Y. 2. N. J. 2. Pa. 3. Del. 1. Md. 2. Va. 3. N. C. 2. S. C. 2. Geo. 1. 6

On the question to postpone in order to take up this motion of Mr. Gerry. 〈It passed in the affirmative.〉

Mas. ay. Cont. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [Ayes — 6; noes — 4.]

Mr. Elseworth moved that 2 Electors be allotted to N. H. Some rule ought to be pursued; and N. H. has more than 100,000 inhabitants. He thought it would be proper also to allot 2. to Georgia.

Mr. Broom Mr. Martin moved to postpone Mr. Gerry’s allotment of Electors, leaving a fit ratio to be reported by the Committee to be appointed for detailing the Resolutions.

On this motion.

Mas-no. Ct. no. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. [Ayes — 3; noes — 7.]

Mr. Houston 2ded. the motion of Mr. Elseworth to add another Elector to N. H. Georgia. On the Question:

Mas. no. Ct ay. N. J. no. Pa. no. Del. no. Md no. Va. no. N. C. no. S. C.-ay-Geo-ay. [Ayes — 3; noes — 7.] 7

Mr. Williamson moved as an amendment to Mr. Gerry’s allotment of Electors in the 1st. instance that in future elections of the Natl. Executive, the number of Electors to be appointed by the several States shall be regulated by their respective numbers of Representatives in the 1st. branch pursuing as nearly as may be the present proportions.

On question on Mr. Gerry’s ratio of Electors

Mas. ay. Ct ay. N. J. no. Pa. ay. Del. no. Md. no. Va. ay-N. C. ay. S. C. ay. Geo. no. [Ayes — 6; noes — 4.]

“to be removeable on impeachment and conviction 〈for〉 malpractice or neglect of duty”. See Resol: 9:

Mr. Pinkney Mr Govr. Morris moved to strike out this part of the Resolution. Mr P. observd. he 〈ought not to〉 be impeachable whilst in office

Mr. Davie. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive. 8

Mr Wilson concurred in the necessity of making the Executive impeachable whilst in office.

Mr. Govr. Morris. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach

Col. Mason. No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Natl. Legislature. One objection agst. Electors was the danger of their being corrupted by the Candidates: this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?

Docr. Franklin was for retaining the clause as favorable to the executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst this as unconstitutional. What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character. It wd. be the best way therefore to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.

Mr. Govr Morris admits corruption some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated defined:

Mr. 〈Madison〉 — thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislative or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

Mr. Pinkney did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.

Mr. Gerry urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief Magistrate could do 〈no〉 wrong.

Mr. King expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate independent: that the Executive Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places 9 not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? 10 — The Executive was to hold his place for a limited term like the members of the Legislature; Like them particularly the Senate whose members would continue in appointmt the same term of 6 years. he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it. Like them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he hold his office during good behavior, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised; But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.

Mr. Randolph. The propriety of impeachments was a favorite principle with him; Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults insurrections. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen (from Col Hamilton) of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just grounds of impeachment existed.

Doctr. Franklin mentioned the case of the Prince of Orange during the late war. An agreement was made between France Holland; by which their two fleets were to unite at a certain time place. The Du〈t〉ch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengtheing his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities contentions. Had he been impeachable, a regular peaceable inquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public.

Mr. King remarked that the case of the Statholder was not applicable. He held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility 11 to the electors 12 being an equivalent security.

Mr Wilson observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive. ought to be subject to impeachment removal.

Mr. Pinkney apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: 〈He presumed〉 that his powers would be so circumscribed as to render impeachments unnecessary.

Mr. Govr. Morris,’s opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst it by displacing him. One would think the King of England well secured agst bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.

〈It was moved 2ded. to postpone the question of impeachments which was negatived. Mas. S. Carolina only being ay.〉 13

On ye. Question, Shall the Executive be removeable on impeachments?

Mas. no. Ct. ay. N. J. ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo-ay- [Ayes — 8; noes — 2.]

“Executive to receive fixed compensation, Agreed to nem. con-

“〈to be paid out of the National Treasury” agreed to, N. Jersey only in the negative.〉 14

Mr. Gerry Govr. Morris moved ‘that the Electors of the Executive shall not be members of the Natl. Legislature, nor officers of the U. States, nor shall the Electors themselves be eligible to the 〈supreme〉 Magistracy.” 15 Agreed to nem. con.

Docr. McClurg asked whether it would not be necessary, before a Committee for detailing the Constitution should be appointed, to determine on the means by which the Executive. is to carry the laws into effect, and to resist combinations agst. them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use? As the Resolutions now Stand the Committee will have no determinate directions on this great point.

Mr. Wilson thought that some additional directions to the Committee wd. be necessary.

Mr. King. The Committee are to provide for the end. Their discretionary power to provide for the means is involved according to an established axiom.

Adjourned

SATURDAY, JULY 21, 1787.

JOURNAL
Saturday July 21. 1787.

It was moved and seconded to add the following clause to the resolution respecting the Electors of the supreme Executive, namely

“Who shall be paid out of the national Treasury for the devotion of their time to the public service”

which passed unanimously in the affirmative. [Ayes — 9; noes — 0.] 1

It was moved and seconded to add after the words “national Executive” in the 10th resolution the words “together with the supreme national Judiciary.”

which passed in the negative [Ayes — 3; noes — 4; divided — 2.] 2

It was moved and seconded to agree to the 10th resolution, as reported from the Committee of the whole House, namely

Resolved that the national Executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two third parts of each Branch of the national Legislature.

which passed unanimously in the affirmative [Ayes — 9; noes — 0.]

On the question to agree to the following amendment of the 3rd clause of the 11th resolution, namely

“That the Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the second Branch of the Legislature”

it passed in the negative [Ayes — 3; noes — 6.]

On the question to agree to the following clause of the 11th resolution, as reported from the Committee of the whole House, namely

“The Judges of which shall be appointed by the second Branch of the national Legislature”

it passed in the affirmative [Ayes — 6; noes — 3.]

[To adjourn Ayes — 1; noes — 8.] 3

And then the House adjourned till Monday next at 11 o’clock A. M.

D ETAIL OF A YES AND N OES
[Beginning of seventh loose sheet]
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[198] no aye dd no aye aye no no dd To join the supreme Judiciary with the Executive in the negative 3 4 2
[199] aye aye aye aye aye aye aye aye aye That the supreme Executive shall possess a revisionary negative 9
[200] aye no aye no no aye no no no To agree to the nomination of the Judges by the Executive which shall become an appointment unless disagreed to by the second Branch of ye Legislature 3 6
[201] no aye no aye aye no aye aye aye The Judges shall be appointed by the second Branch of the Legislature 6 3
[202] no no aye no no no no no no To adjourn 1 8

MADISON
Saturday July 21 in Convention

Mr. Williamson moved that the Electors of the Executive should be paid out of the National Treasury for the Service to be performed by them”. Justice required this: as it was a national service they were to render. The motion was agreed to nem.— con.

Mr. Wilson moved as an amendment to Resoln: 10. that the 〈supreme〉 Natl Judiciary should be associated with the Executive in the Revisionary power”. This proposition had been before made, and failed; but he was so confirmed by reflection in the opinion of its utility, that he thought it incumbent on him to make another effort: The Judiciary ought to have an opportunity of remonstrating agst projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature. — Mr 〈Madison〉 2ded. the motion

Mr Ghorum did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Nor can it be necessary as a security for their constitutional rights. The Judges in England have no such additional provision for their defence, yet their jurisdiction is not invaded. He thought it would be best to let the Executive alone be responsible, and at most to authorize him to call on Judges for their opinions,

Mr. Elseworth approved heartily of the motion. The aid of the Judges will give more wisdom firmness to the Executive. They will possess a systematic and accurate knowledge of the Laws, which the Executive can not be expected always to possess. The law of Nations also will frequently come into question. Of this the Judges alone will have competent information.

Mr. 〈Madison〉 — considered the object of the motion as of great importance to the meditated Constitution. It would be useful to the Judiciary departmt. by giving it an additional opportunity of defending itself agst: Legislative encroachments; It would be useful to the Executive, by inspiring additional confidence firmness in exerting the revisionary power: It would be useful to the Legislature by the valuable assistance it would give in preserving a consistency, conciseness, perspicuity technical propriety in the laws, qualities peculiarly necessary; yet shamefully wanting in our republican Codes. It would moreover be useful to the Community at large as an additional check agst. a pursuit of those unwise unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged agst. the motion, it must be on the supposition that it tended to give too much strength either to the Executive or Judiciary. He did not think there was the least ground for this apprehension. It was much more to be apprehended that notwithstanding this co-operation of the two departments, the Legislature would still be an overmatch for them. Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions; suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.

Mr. Mason said he had always been a friend to this provision. It would give a confidence to the Executive, which he would not otherwise have, and without which the Revisionary power would be of little avail.

Mr. Gerry did not expect to see this point which had undergone full discussion, again revived. The object he conceived of the Revisionary power was merely to secure the Executive department agst. legislative encroachment. The Executive therefore who will best know and be ready to defend his rights ought alone to have the defence of them. The motion was liable to strong objections. It was combining mixing together the Legislative the other departments. It was establishing an improper coalition between the Executive Judiciary departments. It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as the guardians of their Rights interests. It was making the Expositors of the Laws, the Legislators which ought never to be done. A better expedient for correcting the laws, would be to appoint as had been done in Pena. a person or persons of proper skill, to draw bills for the Legislature.

Mr. Strong thought with Mr. Gerry that the power of making ought to be kept distinct from that of expounding, the laws. No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they had taken, in framing the laws.

Mr. Govr. Morris. Some check being necessary on the Legislature, the question is in what hands it should be lodged. On one side it was contended that the Executive alone ought to exercise it. He did not think that an Executive appointed for 6 years, and impeachable whilst in office, wd. be a very effectual check. On the other side it was urged that he ought to be reinforced by the Judiciary department. Agst. this it was objected that Expositors of laws ought to have no hand in making them, and arguments in favor of this had been drawn from England. What weight was due to them might be easily determined by an attention to facts. The truth was that the Judges in England had a great share in ye Legislation. They are consulted in difficult doubtful cases. They may be some of them are members of the Legislature. They are or may be members of the privy Council, and can there advise the Executive as they will do with us if the motion succeeds. The influence the English Judges may have in the latter capacity in strengthening the Executive check can not be ascertained, as the King by his influence in a manner dictates the laws. There is one difference in the two Cases however which disconcerts all reasoning from the British to our proposed Constitution. The British Executive has so great an interest in his prerogatives and such powerful means of defending them that he will never yield any part of them. The interest of our Executive is so inconsiderable so transitory, and his means of defending it so feeble, that there is the justest ground to fear his want of firmness in resisting incroachments. He was extremely apprehensive that the auxiliary firmness weight of the Judiciary would not supply the deficiency. He concurred in thinking the public liberty in greater danger from Legislative usurpations than from any other source. It had been said that the Legislature ought to be relied on as the proper Guardians of liberty. The answer was short and conclusive. Either bad laws will be pushed or not. On the latter supposition no check will be wanted. On the former a strong check will be necessary: And this is the proper supposition. Emissions of paper money, largesses to the people — a remission of debts and similar measures, will at sometimes be popular, and will be pushed for that reason At other times such measures will coincide with the interests of the Legislature themselves, that will be a reason not less cogent for pushing them. It might be thought that the people will not be deluded and misled in the latter case. But experience teaches another lesson. The press is indeed a great means of diminishing the evil, yet it is found to be unable to prevent it altogether.

Mr. L. Martin. considered the association of the Judges with the Executive as a dangerous innovation; as well as one which, could not produce the particular advantage expected from it. A knowledge of mankind, and of Legislative affairs cannot be presumed to belong in a higher deger degree to the Judges than to the Legislature. And as to the Constitutionality of laws, that point will come before the Judges in their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating agst. popular measures of the Legislature. Besides in what mode proportion are they to vote in the Council of Revision?

〈Mr.〉 M〈adison〉 could not discover in the proposed association of the Judges with the Executive in the Revisionary check on the Legislature any violation of the maxim which requires the great departments of power to be kept separate distinct. On the contrary he thought it an auxiliary precaution in favor of the maxim. If a Constitutional discrimination of the departments on paper were a sufficient security to each agst. encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be separate distinct, it was proposed to add a defensive power to each which should maintain the Theory in practice. In so doing we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the practice there to admit the Judges to a seat in the legislature, and in the Executive Councils, and to submit to their previous examination all laws of a certain description, but it was a part of their Constitution that the Executive might negative any law whatever; a part of their Constitution which had been universally regarded as calculated for the preservation of the whole. The objection agst. a union of the Judiciary Executive branches in the revision of the laws, had either no foundation or was not carried far enough. If such a Union was an improper mixture of powers, or such a Judiciary check on the laws, was inconsistent with the Theory of a free Constitution, it was equally so to admit the Executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.

Col Mason Observed that the defence of the Executive was not the sole object of the Revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the Constitution of the Legislature, it would so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect not only of hindering the final passage of such laws; but would discourage demagogues from attempting to get them passed. It had been said (by Mr. L. Martin) that if the Judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of Judges they would have one negative. He would reply that in this capacity they could impede in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course. He wished the further use to be made of the Judges, of giving aid in preventing every improper law. Their aid will be the more valuable as they are in the habit and practice of considering laws in their true principles, and in all their consequences.

Mr. Wilson. The separation of the departments does not require that they should have separate objects but that they should act separately tho’ on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object

Mr. Gerry had rather give the Executive an absolute negative for its own defence than thus to blend together the Judiciary Executive departments. It will bind them together in an offensive and defensive alliance agst. the Legislature, and render the latter unwilling to enter into a contest with them.

Mr. Govr. Morris was surprised that any defensive provision for securing the effectual separation of the departments should be considered as an improper mixture of them. Suppose that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making — another of executing, and a third of judging, the laws. Would it not be very natural for the two latter after having settled the partition on paper, to observe, and would not candor oblige the former to admit, that as a security agst. legislative acts of the former which might easily be so framed as to undermine the powers of the two others, the two others ought to be armed with a veto for their own defence, or at least to have an opportunity of stating their objections agst. acts of encroachment? And would any one pretend that such a right tended to blend confound powers that ought to be separately exercised? 4 As well might it be said that If three neighbours had three distinct farms, a right in each to defend his farm agst. his neighbours, tended to blend the farms together.

Mr. Ghorum. All agree that a check on the Legislature is necessary. But there are two objections agst. admitting the Judges to share in it which no observations on the other side seem to obviate. the 1st. is that the Judges ought to carry into the exposition of the laws no prepossessions with regard to them. 2d. that as the Judges will outnumber the Executive, the revisionary check would be thrown entirely out of the Executive hands, and instead of enabling him to defend himself, would enable the Judges to sacrifice him.

Mr. Wilson. The proposition is certainly 〈not〉 liable to all the objections which have been urged agst. it. According to (Mr. Gerry) it will unite the Executive Judiciary in an offensive defensive alliance agst. the Legislature. According to Mr. Ghorum it will lead to a subversion of the Executive by the Judiciary influence. To the first gentleman the answer was obvious; that the joint weight of the two departments was necessary to balance the single weight of the Legislature. To the 1st. objection stated by the other Gentleman it might be answered that supposing the prepossion to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient. To the 2d. objection, that such a rule of voting might be provided in the detail as would guard agst. it.

Mr. Rutlidge thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary. The Executive could advise with the officers of State, as of war, finance c. and avail himself of their information and opinions.

On Question on Mr. Wilson’s motion for joining the Judiciary in the Revision of laws 5 〈it passed in the negative〉 —

Mas. no. Cont. ay. N. J. not present. Pa. divd. Del. no. Md. ay. Va. ay. N. C. no. S. C. no. Geo. divd. [Ayes — 3; noes — 4; divided — 2.]

〈Resol: 10 giving the Ex. a qualified veto〉 without the amendmt. was then agd. to nem. con.

The motion made by Mr. 〈Madison〉 July 18. then postponed, “that the Judges shd. be nominated by the Executive such nominations become appointments unless disagreed to by ⅔ of the 2d. branch of the Legislature,” was now resumed.

Mr. Madison stated as his reasons for the motion. 1 that it secured the responsibility of the Executive who would in general be more capable likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment- 2 that in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that ⅔ of the 2d. branch would join in putting a negative on it. 3. that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The Executive Magistrate wd be considered as a national officer, acting for and equally sympathising with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho’ by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye Nthern States, a perpetual ground of jealousy discontent would be furnished to the Southern States.

Mr. Pinkney was for placing the appointmt. in the 2d. b. exclusively. The Executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a trust.

Mr. Randolph wd. have preferred the mode of appointmt. proposed formerly by Mr Ghorum, as adopted in the Constitution of Massts. but thought the motion depending so great an improvement of the clause as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the Executive as a security for fit appointments. Appointments by the Legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniencies will proportionally prevail if the appointments be be referred to either branch of the Legislature or to any other authority administered by a number of individuals.

Mr. Elseworth would prefer a negative in the Executive on a nomination by the 2d. branch, the negative to be overruled by a concurrence of ⅔ of the 2d. b. to the mode proposed by the motion; but preferred an absolute appointment by the 2d. branch to either. The Executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appointment.

Mr. Govr. Morris supported the motion. 1. The States in their corporate capacity will frequently have an interest staked on the determination of the Judges. As in the Senate the States are to vote the Judges ought not to be appointed by the Senate. Next to the impropriety of being Judge in one’s own cause, is the appointment of the Judge. 2. It had been said the Executive would be uninformed of characters. The reverse was ye truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The Executive in the necessary intercourse with every part of the U. S. required by the nature of his administration, will or may have the best possible information. 3. It had been said that a jealousy would be entertained of the Executive. If the Executive can be safely trusted with the command of the army, there can not surely be any reasonable ground of Jealousy in the present case. He added that if the Objections agst. an appointment of the Executive by the Legislature, had the weight that had been allowed there must be some weight in the objection to an appointment of the Judges by the Legislature or by any part of it.

Mr. Gerry. The appointment of the Judges like every other part of the Constitution shd. be so modeled as to give satisfaction both to the people and to the States. The mode under consideration will give satisfaction to neither. He could not conceive that the Executive could be as well informed of characters throughout the Union, as the Senate. It appeared to him also a strong objection that ⅔ of the Senate were required to reject a nomination of the Executive. The Senate would be constituted in the same manner as Congress. And the appointments of Congress have been generally good.

Mr. 〈Madison〉, observed that he was not anxious that ⅔ should be necessary to disagree to a nomination. He had given this form to his motion chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.

Col. Mason found it his duty to differ from his colleagues in their opinions reasonings on this subject. Notwithstanding the form of the proposition by which the appointment seemed to be divided between the Executive Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the Executive as a dangerous prerogative. It might even give him an influence over the Judiciary department itself. He did not think the difference of interest between the Northern and Southern 〈States〉 could be properly brought into this argument. It would operate require some precautions in the case of regulating navigation, commerce imposts; but he could not see that it had any connection with the Judiciary department.

On the question, the motion now being “that the executive should nominate, such nominations should become appointments unless disagreed to by the Senate”

Mas. ay. Ct. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes — 3; noes — 6.]

On question for agreeing to the clause as it stands by which the Judges are to be appointed by 2d. branch

Mas. no. Ct. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [Ayes — 6; noes — 3.]

Adjourned 6

MONDAY, JULY 23, 1787.

JOURNAL
Monday July 23rd. 1787.

The honorable John Langdon and Nicholas Gillman Esquires, Deputies from the State of New Hampshire, attended and took their seats

The following credentials were produced and read —

(Here insert the credentials of the Deputies of the State of New Hamr 1

On the question to agree to the 17th resolution, as reported from the Committee of the whole House, namely

“That provision ought to be made for the amendment of the articles of union, whensoever it shall seem necessary”

it passed unanimously in the affirmative.

It was moved and seconded to add after the word “States” in the 18 resolution, the words “and of the national government”

which passed in the affirmative

On the question to agree to the 18th resolution as amended namely

“That the legislative, Executive, and Judiciary Powers within the several States, and of the national Government, ought to be bound by oath to support the articles of union”

It passed unanimously in the affirmative

It was moved and seconded to strike the following words out of the 19th resolution reported from the Committee of the whole House namely

“to an Assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the people to consider and decide thereon”

which passed in the negative. [Ayes — 3; noes — 7.]

On the question to agree to the 19th resolution as reported from the Committee of the whole House, namely

Resolved that the amendments which shall be offered to the confederation by the Convention ought at a proper time or times after the approbation of Congress to be submitted to an assembly or assemblies of representatives, recommended by the several Legislatures, to be expressly chosen by the People to consider and decide thereon

it passed in the affirmative [Ayes — 9; noes — 1.]

It was moved and seconded to agree to the following resolution, namely

Resolved that the representation in the second Branch of the Legislature of the United States consist of Members from each State, who shall vote per capita.

It was moved and seconded to fill up the blank with the word “Three”

which passed in the negative. [Ayes — 1; noes — 9.]

It was moved and seconded to fill up the blank with the number “Two”

which was unanimously agreed to [Ayes — 10; noes — 0.]

On the question to agree to the resolution as filled up —

it passed in the affirmative. [Ayes — 9; noes — 1.]

It was moved and seconded to reconsider that clause of the resolution respecting the appointment of the supreme Executive.

which passed in the affirmative [Ayes — 7; noes — 3.]

and to-morrow was assigned for the reconsideration. [Ayes — 8; noes — 2.]

[To adjourn. Ayes — 0; noes — 10.] 2

It was moved and seconded that the proceedings of the Convention for the establishment of a national government, except what respects the Supreme Executive, be referred to a Committee for the purpose of reporting a Constitution conformably to the Proceedings aforesaid — which passed unanimously in the affirmative [Ayes — 10; noes — 0.]

D ETAIL OF A YES AND N OES
New Hampshire Massachusetts Rhode Island Connecticut New York New Jersey Pennsylvania Delaware Maryland Virginia North Carolina South Carolina Georgia Questions Ayes Noes Divided
[203] no no aye no aye aye no no no no To strike out the words “an assembly or assemblies of representatives recommended by the sevl Legislatures to be expressly chosen by the People to consider and decide thereon” in the last resolution 3 7
[204] aye aye aye aye no aye aye aye aye aye To agree to the last resolution 9 1
[205] no no no aye no no no no no no To fill up the blank in the resolution respecting the number of representatives in ye 2 branch wh “three. 1 9
[206] aye aye aye aye aye aye aye aye aye aye To fill up the blank with the word “Two” unanimous
[207] aye aye aye aye aye no aye aye aye aye To agree to the resolution respecting the number of representatives in the 2nd branch and the manner of voting 9 1
[208] aye aye aye no aye no no aye aye aye To reconsider the clause respecting the appointment of the supreme Executive. 7 3
[209] aye aye no no aye aye aye aye aye aye To reconsider the clause respecting the Executive to-morrow 8 2
[210] no no no no no no no no no no To adjourn. 10
[211] aye aye aye aye aye aye aye aye aye aye To agree to refer the Proceedings of the Convention to a Commitee
[212] no no no no aye no no no no no That the Committee consist of a Member from each State 1 9
[213] aye aye aye no no aye no no aye no That the Committee consist of Seven 5 5
[214] aye aye aye aye aye aye aye aye aye aye That the Committee consist of five, unanimous 10