Journal of the Federal Convention June 4th 1787

A Single Supreme Executive. Council of Revision. Elbridge Gerry & Judicial Review. Executive Veto Subject to Legislative Override. Mason Speech. Two Thirds Override. Establishment of Supreme Judiciary.

The Question was resumed on motion of Mr. PINKNEY 2ded. by [FN2] WILSON, "shall the blank for the number of the Executive be filled with a single person?"

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 [FN3] 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 Governt. 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 [FN4] 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 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. 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. [FN5]

First Clause of Proposition 8th. [FN6] relating to a Council of Revision taken into 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."

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 amendment go far enough. If the Legislative Exetv & Judiciary ought to be distinct & independent. The Executive ought to have an absolute negative. Without such a self-defense 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, Masss. ay. Cont. no. N. Y. ay. Pa. ay. Del. no. Maryd. no. Virga. no. N. C. ay. S. C. ay. Ga. ay. [FN7]

Mr. GERRY'S proposition being now before [FN8] Committee, Mr. WILSON & Mr. HAMILTON move that the last part of it [viz. "Wch. Sl. not be afterwds. passed unless [FN9] by -------- parts of each branch of the National legislature] 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. 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, every thing 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 [FN10] 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 overule 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. 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 animosities 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, [FN11] 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 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 produce a sufficient controul within the Legislature itself.

Col. MASON 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 Governmt. 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. 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 [FN12] 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 [FN13] Executive an absolute negative-Massts. no. Cont. no. N. Y. no. Pa. no. Dl. no. Md. no. Va. no. N. C. no. S. C. no. Georga. no. [FN14]

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 --------." Doctr. FRANKLIN seconds the motion.

Mr. GERRY observed that a [FN15] 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 [FN13] 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 [FN16] check: it passed in the affirmative sub silentio; and was inserted in the blank of Mr. Gerry's motion.

On the question on Mr. Gerry's motion which gave the Executive alone without the Judiciary the revisionary controul on the laws unless overruled by 2/3 of each branch; Massts. ay. Cont. no. N. Y. ay. Pa. ay. Del. ay. Maryd. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN17]

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."

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,-where-upon Wednesday (the day after) [FN18] 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" [FN19] It passed in the affirmative nem. con. It was then moved & 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-

FN5 In the transcript the vote reads: "Massachusetts, Connecticut, Pennsylvania, Virginia, (Mr. Randolph and Mr. Blair, no; Doctor McClurg, Mr. Madison, and General Washington, aye; Colonel Mason being no, but not in the House, Mr. Wythe, aye, but gone home), North Carolina, South Carolina, Georgia, aye-; New York, Delaware, Maryland, no-3."

FN6 The phrase "the eighth Resolution" is substituted in the transcript for "Proposition 8th."

FN7 In the transcript the vote reads: "Massachusetts, New York, Pennsylvania, North Carolina, South Carolina, Georgia, aye-6; Connecticut, Delaware, Maryland, Virginia, no-4."

FN11 In the transcript the syllable "tive" is stricken from the word "Legislative" and "ture" is written above it.

FN14 In the transcript the vote reads "Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, no-10."

FN16 In the transcript the word "provisionary" was erroneously used in place of "revisionary."

FN17 In the transcript this vote reads: "Massachusetts, New York, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye- 8; Connecticut, Maryland, no-2."

FN19 The phrase "Resolved that a National Judiciary be established" is italicized in the transcript.

(Parentheses contain my observations.)

(The Resolutions cited today were those of the Randolph/Virginia Plan submitted by Governor Edmund Randolph of Virginia on May 29th. See http://www.freerepublic.com/focus/f-bloggers/2726699/posts)

In Committee of the Whole.

Charles Pinckney (SC) motioned to ask delegates, “Shall the blank for the number of Executives be filled with a single person?"

James Wilson (PA) reminded the convention that all of the states had a single governor. He predicted animosity between multiple execs that would poison relations with the other branches, administration, the states and people.

Roger Sherman (CN) asked if Mr. Wilson intended to have a Council for the Executive as the Governors and King of England had. Answer: No.

A single Executive it would be, by a 7-3 vote.

Resolution Eight was next. “That the Executive and a convenient number of the National Judiciary, ought to compose a Council of Revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ----- of the members of each branch.”

Elbridge Gerry brought up Judicial Review, the power to toss unconstitutional laws. That alone would provide a sufficient check against encroachments upon the Judicial Branch. It was foreign to a judge’s nature to get involved with public policy.

(Before I read these debates, I was skeptical of the power of Judicial Review as being somehow inherent within the Judicial Branch. No more. It will come up again at the Convention, without making any fuss at all. From these debates, I am convinced that what most Freepers regard as an unconstitutional power grab in Marbury v. Madison by John Marshall was no such thing.)

Rufus King (MA) disliked the idea of deciding the merits of a case in which the court had a hand in making the underlying law. (What would Bull Kagan think?) (Sorry.)

(Council of Revision. Debate over a Council of Revision may be a surprise to most Freepers. The nub of the question was, “Should the Judiciary and Executive have joint veto power over bills passed by Congress before they become law?” Elbridge Gerry didn’t think so, because the judiciary may have subsequent duty to determine a law’s Constitutionality. To negate a bill outside of court would involve the judiciary in political decisions.)

(Sidebar. One of my references to these posts was Miracle at Philadelphia by C. D. Bowen, 1966. According to her, Elbridge Gerry told fellow delegates he did not wish to see the Executive “covered by the sanction and seduced by the sophistry of the judges.” He reflected a widespread prejudice. Among the fifty-five delegates, thirty-four were lawyers and eight were judges. She wondered if they frowned at his dig. The fact was that judges were not held in high regard at the time. Shays Rebellion involved shutting down foreclosure proceedings and courthouses. In the continuing deep recession after the war, judges were associated with throwing honest men, surviving soldiers into debtor prisons for not paying taxes in specie when all they had was worthless State issued paper money. Also, lawyers had made themselves unpopular since the peace of 1783 by defending former Loyalists in court who wished to retrieve confiscated property. Alexander Hamilton, Robert Yates were among them. James Wilson’s home was damaged by a mob, due in part to his defense of Tory property.)

Mr. Gerry motioned to postpone the debate and discuss granting the Executive sole power to negate bills.)

The question of a Council of Revision was postponed, to take up the question of a veto by the Executive.

James Wilson (PA) suspected a powerful legislature will roll the executive. He supported an absolute negative, with no override by the legislature, jointly by a combined executive and judiciary council.

Alexander Hamilton (NY) favored an absolute Executive Veto, with no legislative override. The King of England had not used his veto power since the revolution.

(We should remember the admiration our Framers had for the British system. While it would not do for Americans, the powers of Parliament and King hovered over the delegates. After the Convention, Luther Martin (MD) remarked, “We were eternally troubled with arguments and precedents from the British government.”)

Elbridge Gerry (MA) disagreed, saw no need for an absolute veto.

Dr. Benjamin Franklin (PA) disagreed with Wilson and Hamilton. He related how the absolute veto in PA fostered incredible public corruption, even at the expense of scalped frontier settlers.

Roger Sherman (CN) disapproved of the executive veto. Why should a single man be empowered to absolutely overturn the will of the whole?

James Madison (VA) supported a legislative override. It was against the temper of Americans to grant monarchal powers to the Executive.

Fellow Pennsylvanian James Wilson reminded Dr. Franklin that the Executive back then was not elected by the people.

Pierce Butler (SC) spoke of Executives with tyrannical intentions.

Gunning Bedford (DE) preferred enumerated powers for the legislature and no veto at all over their bills.

George Mason (VA) agreed with Franklin on the probability of corruption associated with a single executive. Bribery and influence peddling are certain to follow. He went so far as to be certain that the convention would create an elective monarchy, which is more dangerous than a hereditary one. He cautioned delegates to propose a system the people will accept.

Dr. Benjamin Franklin (PA) gave another history lesson. We were apparently doomed to a Monarch. (Obama is certainly the Executive closest to Monarchial reaches of power, but without a nobility to keep him in check.)

By a vote, the Executive would not have an absolute veto.

Pierce Butler (SC) asked delegates to allow the Executive to suspend laws for a specific period of time. No way, all states voted against.

The motion for a legislative 2/3 override of a veto passed.

Judicial veto of Congressional bills was defeated. Connecticut and Maryland voted for it.

James Wilson (PA) & James Madison (VA) attempted to reinsert wording similar to that rejected regarding Judicial veto. It would be considered tomorrow.

In what may have occurred in only a few minutes and at the end of the day, the convention accepted Randolph’s Resolution #9 to establish a National Judiciary.

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