Monday June 4, 1787
In Committee of the Whole
James Madison's Notes
The Question was resumed on motion of Mr. Pinkney 2ded. by Wilson "shall the blank for the number of the Executive be filled with "a single person"? 1
Mr. Wilson was in favor of the motion. It had been opposed by the gentleman from Virga. (Mr. Randolph) but the arguments used had not convinced him. He observed that the objections of Mr. R. were levelled not so much agst. the measure itself, as agst. its unpopularity. If he could suppose that it would occasion a rejection of the plan of which it should form a part, though the part was an important one, yet he would give it up rather than lose the whole. On examination he could see no evidence of the alledged antipathy of the people. On the contrary he was persuaded that it does not exist. All know that a single magistrate is not a King. one fact has great weight with him. All the 13 States tho' agreeing in scarce any other instance, agree in placing a single magistrate at the head of the Governmt. The idea of three heads has taken place in none. The degree of power is indeed different: but there are no co-ordinate heads. In addition to his former reasons for preferring a Unity, he would mention another. The tranquility not less than the vigor of the Govt. he thought would be favored by it. Among three equal members, he foresaw nothing but uncontrouled, continued, & violent animosities; which would not only interrupt the public administration; but diffuse their poison thro' the other branches of Govt., thro' the States, and at length thro' the people at large. If the members were to be unequal in power the principle of the opposition to the Unity was given up. If equal, the making them an odd number would not be a remedy. In Courts of Justice there are two sides only to a question. In the Legislative & Executive departmts. questions have commonly many sides. Each member therefore might espouse a separate one & no two agree.
Mr. Sherman. This matter is of great importance and ought to be well considered before it is determined. Mr. Wilson he said had observed that in each State a single magistrate was placed at the head of the Govt. It was so he admitted, and properly so, and he wished the same policy to prevail in the federal Govt. But then it should be also remarked that in a all the States there was a Council of advice, without which the first magistrate could not act. A Council he thought necessary to make the establishment acceptable to the people. Even in G. B. the King has a council; and though he appoints it himself, its advice has its weight with him, and attracts the Confidence of the people.
Mr. Williamson asks Mr. Wilson whether he means to annex a Council
Mr. Wilson means to have no Council, which oftener serves to cover, than prevent malpractices.
Mr Gerry. was at a loss to discover the policy of three members for the Executive. It wd. be extremely inconvenient in many instances, particularly in military matters, whether relating to the militia, an army, or a navy. It would be a general with three heads.
On the question for a single Executive it was agreed to Massts. ay. Cont. ay. N.Y. no. Pena. ay. Del. no. Maryd. no. Virg. ay. (Mr. R & Mr. Blair no--Docr. Mc. Cg. Mr. M. & Gen W. ay. Col. Mason being no, but not in house, Mr. Wythe ay but gone home). N. C. ay. S.C. ay. Georga. ay. [Ayes--7; noes--3.]
First Clause of Proposition 8th relating to a Council of Revision taken into con-consideration.
Mr. Gerry doubts whether the Judiciary ought to form a part of it, as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation. It was quite foreign from the nature of ye. office to make them judges of the policy of public measures. He moves to postpone the clause in order to propose "that the National Executive shall have a right to negative any Legislative act which shall not be afterwards passed by parts of each branch of the national Legislature 2
Mr. King seconds the motion, observing that the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.
Mr. Wilson thinks neither the original proposition nor the amendments go far enough. If the Legislative Ex?tiv & Judiciary ought to be distinct & independent, The Executive ought to have an absolute negative. Without such a Self-defence the Legislature can at any moment sink it into non-existence. He was for varying the proposition in such a manner as to give the Executive & Judiciary jointly an absolute negative
On the question to postpone in order to take Mr. Gerry's proposition into consideration it was agreed to Massts. ay. Cont. no. N.Y. ay. Pa. ay. Del. no. Maryd. no. Virga. no. N. C. ay. S.C. ay. Ga. ay. [Ayes--6; noes--4.]
Mr. Gerry's proposition being now before Committee, Mr. Wilson & Mr. Hamilton move that the last part of it (viz wch. sl. not be afterwds. passed" unless by parts of each branch of the National legislature) 3 be struck out, so as to give the Executive an absolute negative on the laws. There was no danger they thought of such a power being too much exercised. It was mentioned (by Col: Hamilton) that the King of G. B. had not exerted his negative since the Revolution. 4
Mr. Gerry sees no necessity for so great a controul over the legislature as the best men in the Community would be comprised in the two branches of it.
Docr. Franklin, said he was sorry to differ from his colleague for whom he had a very great respect, on any occasion, but he could not help it on this. He had had some experience of this check in the Executive on the Legislature, under the proprietary Government of Pena. The negative of the Governor was constantly made use of to extort money. No good law whatever could be passed without a private bargain with him. An increase of his salary, or some donation, was always made a condition; till at last it became the regular practice, to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter. When the Indians were scalping the western people, and notice of it arrived, the concurrence of the Governor in the means of self-defence could not be got, till it was agreed that his Estate should be exempted from taxation. so that the people were to fight for the security of his property, whilst he was to bear no share of the burden. This was a mischievous sort of check. If the Executive was to have a Council, such a power would be less objectionable. It was true the King of G. B. had not, As was said, exerted his negative since the Revolution: but that matter was easily explained. The bribes and emoluments now given to the members of parliament rendered it unnecessary, everything being done according to the will of the Ministers. He was afraid, if a negative should be given as proposed, that more power and money would be demanded, till at last eno' would be gotten to influence & bribe the Legislature into a compleat subjection to the will of the Executive.
Mr. Sherman was agst. enabling any one man to stop the will of the whole. No one man could be found so far above all the rest in wisdom. He thought we ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the Legislature.
Mr.Madison supposed that if a proper proportion of each branch should be required to overrule the objections of the Executive, it would answer the same purpose as an absolute negative. It would rarely if ever happen that the Executive constituted as ours is proposed to be would, have firmness eno' to resist the Legislature, unless backed by a certain part of the body itself. 5 The King of G. B. with all his splendid attributes would not be able to withstand ye. unanimous and eager wishes of both houses of Parliament. To give such a prerogative would certainly be obnoxious to the temper of this country; its present temper at least.
Mr. Wilson believed as others did that this power would seldom be used. The Legislature would know that such a power existed, and would refrain from such laws, as it would be sure to defeat. Its silent operation would therefore preserve harmony and prevent mischief. The case of Pena. formerly was very different from its present case. The Executive was not then as now to be appointed by the people. It will not in this case as in the one cited be supported by the head of a Great Empire, actuated by a different & sometimes opposite interest. The salary too is now proposed to be fixed by the Constitution, or if Dr. F's idea should be adopted all salary whatever interdicted. The requiring a large proportion of each House to overrule the Executive check might do in peaceable times; but there might be tempestuous moments in which animosties may run high between the Executive and Legislative branches, and in which the former ought to be able to defend itself.
Mr. Butler had been in favor of a single Executive Magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. It had been observed that in all countries the Executive power is in a constant course of increase. This was certainly the case in G. B. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a Cromwell arise in this Country as well as in others.
Mr. Bedford was opposed to every check on the Legislative, even the Council of Revision first proposed. He thought it would be sufficient to mark out in the Constitution the boundaries to the Legislative Authority, which would give all the LC requisite security to the rights of the other departments. The Representatives of the People were the best judges of what was for their interest, and ought to be under no external controul whatever. The two branches would produces a sufficient controul within the Legislature itself.
Col. Mason 6 observed that a vote had already passed he found (he was out at the time) for vesting the executive powers in a single person. Among these powers was that of appointing to offices in certain cases. The probable abuses of a negative had been well explained by Dr. F as proved by experience, the best of all tests. Will not the same door be opened here. The Executive may refuse its assent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed all these into his own hands, the American Executive, like the British, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. We are Mr. Chairman going very far in this business. We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one. We are introducing a new principle into our system, and not necessary as in the British Govt. where the Executive has greater rights to defend. Do gentlemen mean to pave the way to hereditary Monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do I venture to tell them, they are mistaken. The people never will consent. And do gentlemen consider the danger of delay, and the still greater danger of a a rejection not for a moment but forever, of the plan which shall be proposed to them. Notwithstanding the oppressions & injustice experienced among us from democracy; the genius of the people is in favor of it, and the genius of the people must be consulted. He could not but consider the federal system as in effect dissolved by the appointment of this Convention to devise a better one. And do gentlemen look forward to the dangerous interval between the extinction of an old, and the establishment of a new Government, and to the scenes of confusion which may ensue. He hoped that nothing like a monarchy would ever be attempted in this Country. A hatred to its oppressions had carried the people through the late Revolution. Will it not be eno' to enable the Executive to suspend offensive laws, till they shall be coolly revised, and the objections to them overruled by a greater majority than was required in the first instance. He never could agree to give up all the rights of the people to a single Magistrate. If more than one had been fixed on, greater powers might have been entrusted to the Executive. He hoped this attempt to give such powers would have its weight hereafter as an argument for increasing the number of the Executive.
Docr. Franklin. 7 A Gentleman from S. C. (Mr. Butler) a day or two ago called our attention to the case of the U. Netherlands. He wished the gentleman had been a little fuller, and had gone back to the original of that Govt. The people being under great obligations to the Prince of Orange whose wisdom and bravery had saved them, chose him for the Stadtholder. He did very well. Inconveniences however were felt from his powers; (which growing more & more oppressive, they were at length set aside.) Still however there was a party for the P. of Orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de Witts, and got the powers revested in the Stadtholder. Afterwards another Prince had power to excite insurrections & to make the Stadtholdership hereditary. And the present Stadthder. is ready to wade thro' a bloody civil war to the establishment of a monarchy. Col. Mason had mentioned the circumstance of appointing officers. He knew how that point would be managed. No new appointment would be suffered as heretofore in Pensa. unless it be referred to the Executive; so that all profitable offices will be at his disposal. The first man, put at the helm will be a good one. No body knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a monarchy
On the question for striking out so as to give Executive an absolute Negative--
Massts . no. Cont. no. N.Y. no. Pa. no. D1. no. Md. no. Va. no. N. C. no. S.C. no. Georga. no. [Ayes--0; noes--10.] 8
Mr. Butler moved that the Resoln. be altered so as to read "Resolved that the National Executive have a power to suspend any legislative act for the term of ." 9
Doctr. Franklin seconds the motion.
Mr. Gerry observed that a power of suspending might do all the mischief dreaded from the negative of useful laws; without answering the salutary purpose of checking unjust or unwise ones.
On question "for giving this suspending power". all the States, to wit Massts. Cont. N.Y. Pa. Del. Maryd. Virga. N. C. S.C. Georgia. were no.
On a question for enabling two thirds of each branch of the Legislature to overrule the revisionary check: it passed in the affirmative sub silentio; and was inserted in the blank of Mr. Gerry's motion. 10
On the question on Mr. Gerry's motion which gave the Executive alone without the Judiciary the revisionary controul on the laws (unles overruled by 2/3; of each branch.) 11 Massts. ay. Cont. no. N.Y. ay. Pena. ay. Del. ay. Maryd. no. Va. ay N. C. ay. S.C. ay. Geo. ay. [Ayes--8; noes -- 2.]
It was moved by Mr. Wilson 2ded. by Mr. Madison that the following amendment be made to the last resolution after the words "National Ex." to add "& a convenient number of the National Judiciary." 12
An Objection of order being taken by Mr. Hamilton to the introduction of the last amendment at this time, notice was given by Mr. W. &. Mr. M--that the same wd. be moved tomorrow.--whereupon Wednesday (the day after) was assigned to reconsider the amendment of Mr. Gerry.
It was then moved & 2ded. to proceed to the consideration of the 9th. resolution submitted by Mr. Randolph--when on motion to agree to the first clause namely "Resolved that a National Judiciary be established" It passed in the Affirmative nem. con.
It was then moved and 2ded. to add these words to the first clause of the ninth resolution namely--"to consist of one supreme tribunal, and of one or more inferior tribunals". which passed in the affirmative--
The Comme. then rose and the House Adjourned.
1: Revised from Journal.
2: Revised from Journal.
3: Taken from Journal.
4: In place of "(by Col. Hamilton)" Madison first wrote "by one of them". The only source for this interpolation would seem to be King's notes which were probably known to Madison.
5: Crossed out "or actuated by some foreign support agst. his own Country."
6: For Mason's own copy of this speech see below.
7: The following is evidently Franklin's own draft of this speech:
The Steady Course of public Measures is most probably to be expected from a Number.
A single Person's Measures may be good. The Successor, often differs in Opinion of those Measures, & adopts others. Often is ambitious of distinguishing himself, by opposing them, and offering new Projects. One is peaceably dispos'd. Another may be food of War, &c: Hence foreign States can never have that Confidence, in the Treaties or Friendship of such a Government as in that which is conducted by a Number.
The Single Head may be Sick. Who is to conduct the Public Affairs in that Case? When he dies, who are to conduct, till a new Election?--If a Council why not continue them?--Shall we not be harass'd with Factions for the Election of Successors? become like Poland, weak from our Dissensions?
Consider the present distracted Condition of Holland. They had at first a Stadtholder, the Prince of Orange, a Man of undoubted and great Merit. They found some Inconveniencies however in the Extent of Powers annex'd to that Office, and exercis'd by a single Person. On his Death They resum'd and divided those Powers among the States and Cities. But there has been a constant Struggle since between that Family & the Nation. In the last Century the then Prince of Orange found Means to inflame the Populace against their Magistrates, excite a general Insurrection in which an excellent Minister, Dewit, was murdered, all the old Magistrates displac'd, and the Stadtholder re-invested with all the former Powers. In this Century, the Father of the present Stadtholder, having married a British Princess, did, by exciting another Insurrection, force from the Nation a Decree that the Stadtholdership should be thenceforth hereditary in his Family. And now his Son, being suspected of having favourd England in the late War, and thereby lost the Confidence of the Nation, he is forming an internal Faction to support his Power, & reinstate his Favourite the Duke of Brunswick; and he holds up his Family Alliances with England and Prussia to terrify Opposition. It was this Conduct of the Statholder which induc'd the States to recur to the Protection of France, and put their Troops under a French rather than the Stadtholder's German General the Duke of Brunswick. And this is the Source of all the present Disorders in Holland, which if the Stadtholder has Abilities equal to his Inclinations, will probably after a ruinous & bloody civil War, end in establishing an hereditary Monarchy in his Family.
[In Franklin's Works ( Sparks edition, V, 142, Smyth edition, IX, 603--4) these notes are mistakenly attached to a proposal by Franklin on June 30.]
8: Cf. King's record of this vote.
9: Madison originally had this motion in substance, but revised it from Journal.
10: Probably based upon Yates.
11: Corrected from Journal.
12: Originally Madison had only recorded "Clause.--'That a national Judiciary be established' passed nem. con." This was crossed out and the rest of this day's records copied from Journal. Professor Jameson ( American Historical Review, III, 323 note) ascribes this speech by Madison and the one following by Dickinson to June 6. But the text above shows that Madison's records at the close of this day's sessions were quite defective. It is possible that he inserted in his record of his remarks on June 6 a portion of his speech on June 4.