Volume I Part 12 (1/2)

M^r Pierce[69] was for an election by the people as to the 1^{st} branch & by the States as to the 2^d branch; by which means the Citizens of the States w^d be represented both _individually_ & _collectively_.

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

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

M^r Wilson would not have spoken again, but for what had fallen from Mr.

Read; namely, that the idea of preserving the State Gov^{ts} ought to be abandoned. He saw no incompatibility between the national & State Gov^{ts} provided the latter were restrained to certain local purposes; nor any probability of their being devoured by the former. In all confederated Systems antient & modern the reverse had happened; the Generality being destroyed gradually by the usurpations of the parts composing it.

On the question for electing the 1^{st} branch by the State Legislatures as moved by M^r Pinkney: it was negatived:

Ma.s.s. no. C^t ay. N. Y. no. N. J. ay. P^a no. Del. no. M^d no.

V^a no. N. C. no. S. C. ay. Geo. no.

M^r Wilson moved to reconsider the vote excluding the Judiciary from a share in the revision of the laws, and to add after ”National Executive”

the words ”with a convenient number of the national Judiciary;”

remarking the expediency of reinforcing the Executive with the influence of that Department.

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

M^r Gerry thought the Executive, whilst standing alone w^d be more impartial than when he c^d be covered by the sanction & seduced by the sophistry of the Judges.

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

M^r Pinkney had been at first in favor of joining the heads of the princ.i.p.al departm^{ts} the Secretary at War, of foreign affairs &c.--in the council of revision. He had however relinquished the idea from a consideration that these could be called on by the Executive Magistrate whenever he pleased to consult them. He was opposed to the introduction of the Judges into the business.

Col. Mason was for giving all possible weight to the revisionary inst.i.tution. The Executive power ought to be well secured ag^{st} Legislative usurpations on it. The purse & the sword ought never to get into the same hands whether Legislative or Executive.

M^r d.i.c.kinson. Secrecy, vigor & despatch are not the princ.i.p.al properties req^d in the Executive. Important as these are, that of responsibility is more so, which can only be preserved; by leaving it singly to discharge its functions. He thought too a junction of the Judiciary to it, involved an improper mixture of powers.

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

M^r Williamson, was for subst.i.tuting a clause requiring 2/3 for every effective act of the Legislature, in place of the revisionary provision.

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

Ma.s.s. no. Con^t ay. N. Y. ay. N. J. no. P^a no. Del. no. M^d no.

V^a ay. N. C. no. S. C. no. Geo. no.

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

The Com^e rose & the House adj^d to 11 OC.

THURSDAY JUNE 7^{TH} 1787--IN COMMITTEE OF THE WHOLE

M^r Pinkney according to notice moved to reconsider the clause respecting the negative on State laws, which was agreed to, and tomorrow for fixed the purpose.

The Clause providing for y^e appointment of the 2^d branch of the national Legislature, having lain blank since the last vote on the mode of electing it, to wit, by the 1^{st} branch, M^r d.i.c.kinson now moved ”that the members of the 2^d branch ought to be chosen by the individual Legislatures.”

M^r Sherman seconded the motion; observing that the particular States would thus become interested in supporting the National Govenm^t and that a due harmony between the two Governments would be maintained. He admitted that the two ought to have separate and distinct jurisdictions, but that they ought to have a mutual interest in supporting each other.

M^r Pinkney. If the small States should be allowed one Senator only, the number will be too great, there will be 80 at least.