The Journal of the Debates in the Convention which framed the Constitution of USA Volume II Part 21

[29] Madison's Note says: "See the motion at large in the Journal of this date, page 253, and insert it here." The Journal gives it as follows:

"It was moved by Mr. Madison, and seconded, to agree to the following amendment of the thirteenth section of the sixth article:

"Every bill which shall have pa.s.sed the two houses, shall, before it become a law, be severally presented to the President of the United States, and to the judges of the supreme court for the revision of each. If, upon such revision, they shall approve of it, they shall respectively signify their approbation by signing it; but if, upon such revision, it shall appear improper to either, or both, to be pa.s.sed into a law, it shall be returned, with the objections against it, to that house, in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider the bill: but if, after such reconsideration, two thirds of that house, when either the President, or a majority of the judges shall object, or three fourths, where both shall object, shall agree to pa.s.s it, it shall, together with the objections, be sent to the other house, by which it shall likewise be reconsidered; and, if approved by two thirds, or three fourths of the other house, as the case may be, it shall become a law."

M^r Wilson seconds the motion.

M^r Pinkney opposed the interference of the Judges in the Legislative business: it will involve them in parties, and give a previous tincture to their opinions.

M^r Mercer heartily approved the motion. It is an axiom that the Judiciary ought to be separate from the Legislative; but equally so that it ought to be independent of that department. The true policy of the axiom is that legislative usurpation and oppression may be obviated. He disapproved of the Doctrine that the Judges as expositors of the Const.i.tution should have authority to declare a law void. He thought laws ought to be well and cautiously made, and then to be uncontroulable.

M^r Gerry. This motion comes to the same thing with what has been already negatived.

Question on the motion of M^r Madison

N. H. no. Ma.s.s. no. C^t no. N. J. no. P^a no. Del. ay.

Mary^d ay. Virg^a ay. N. C. no. S. C. no. Geo. no.

M^r Gov^r Morris regretted that something like the proposed check could not be agreed to. He dwelt on the importance of public Credit, and the difficulty of supporting it without some strong barrier against the instability of legislative a.s.semblies. He suggested the idea of requiring three fourths of each house to _repeal_ laws where the President should not concur. He had no great reliance on the revisionary power as the Executive was now to be const.i.tuted (elected by Congress.) The legislature will contrive to soften down the President. He recited the history of paper emissions, and the perseverance of the legislative a.s.semblies in repeating them, with all the distressing effects of such measures before their eyes. Were the National legislature formed, and a war was now to break out, this ruinous expedient would be again resorted to, if not guarded against. The requiring 3/4 to repeal would, though not a compleat remedy, prevent the hasty pa.s.sage of laws, and the frequency of those repeals which destroy faith in the public, and which are among our greatest calamities.

M^r d.i.c.kenson was strongly impressed with the remark of M^r Mercer as to the power of the Judges to set aside the law. He thought no such power ought to exist. He was at the same time at a loss what expedient to subst.i.tute. The Justiciary of Arragon he observed became by degrees the lawgiver.

M^r Gov^r Morris, suggested the expedient of an absolute negative in the Executive. He could not agree that the Judiciary which was part of the Executive, should be bound to say that a direct violation of the Const.i.tution was law. A controul over the legislature might have its inconveniences. But view the danger on the other side. The most virtuous Citizens will often as members of a legislative body concur in measures which afterwards in their private capacity they will be ashamed of.

Encroachments of the popular branch of the Government ought to be guarded ag^{st}. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylv^a points out the many invasions of the legislative department on the Executive numerous as the latter[30] is, within the short term of seven years, and in a State where a strong party is opposed to the Const.i.tution, and watching every occasion of turning the public resentments ag^{st} it. If the Executive be overturned by the popular branch, as happened in England, the tyranny of one man will ensue. In Rome where the Aristocracy overturned the throne, the consequence was different. He enlarged on the tendency of the legislative Authority to usurp on the Executive and wished the section to be postponed, in order to consider of some more effectual check than requiring 2/3 only to overrule the negative of the Executive.

[30] The Executive consists at this time of ab^t 20 members.--Madison's Note.

M^r Sherman. Can one man be trusted better than all the others if they all agree? This was neither wise nor safe. He disapproved of Judges meddling in politics and parties. We have gone far enough in forming the negative as it now stands.

M^r Carrol. When the negative to be overruled by 2/3 only was agreed to, the _quorum_ was not fixed. He remarked that as a majority was now to be the quorum, 17. in the larger, and 8 in the smaller house might carry points. The advantage that might be taken of this seemed to call for greater impediments to improper laws. He thought the controuling power however of the Executive could not be well decided, till it was seen how the formation of that department would be finally regulated. He wished the consideration of the matter to be postponed.

M^r Ghorum saw no end to these difficulties and postponements. Some could not agree to the form of Government before the powers were defined. Others could not agree to the powers till it was seen how the Government was to be formed. He thought a majority as large a quorum as was necessary. It was the quorum almost every where fixt in the U.

States.

M^r Wilson; after viewing the subject with all the coolness and attention possible was most apprehensive of a dissolution of the Gov^t from the legislature swallowing up all the other powers. He remarked that the prejudices ag^{st} the Executive resulted from a misapplication of the adage that the parliament was the palladium of liberty. Where the Executive was really formidable, _King_ and _Tyrant_, were naturally a.s.sociated in the minds of people; not _legislature_ and _tyranny_. But where the Executive was not formidable, the two last were most properly a.s.sociated. After the destruction of the King in Great Britain, a more pure and unmixed tyranny sprang up in the parliament than had been exercised by the monarch. He insisted that we had not guarded ag^{st} the danger on this side by a sufficient self-defensive power either to the Executive or Judiciary department.

M^r Rutlidge was strenuous ag^{st} postponing; and complained much of the tediousness of the proceedings.

M^r Elseworth held the same language. We grow more & more sceptical as we proceed. If we do not decide soon, we shall be unable to come to any decision.

The question for postponement pa.s.sed in the negative: Del: & Mary^d only being in the affirmative.

M^r Williamson moved to change, "2/3 of each House" into "3/4" as requisite to overrule the dissent of the President. He saw no danger in this, and preferred giving the power to the Presid^t alone, to admitting the Judges into the business of legislation.

M^r Wilson 2^{ds} the motion; referring to and repeating the ideas of M^r Carroll.

On this motion for 3/4, instead of two-thirds; it pa.s.sed in the affirmative.

N. H. no. Ma.s.s. no. C^t ay. N. J. no. Pen^a div^d. Del. ay.

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

M^r Madison, observing that if the negative of the President was confined to _bills_; it would be evaded by acts under the form and name of Resolutions, votes &c., proposed that "or resolve" should be added after "_bill_" in the beginning of sect 13. with an exception as to votes of adjournment &c. After a short and rather confused conversation on the subject, the question was put & rejected, the States being as follows,

N. H. no. Ma.s.s. ay. C^t no. N. J. no. Pen^a no. Del. ay. M^d no.

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

"_Ten_ days (Sundays excepted)" instead of "_seven_" were allowed to the President for returning bills with his objections N. H. & Mas: only voting ag^{st} it.

The 13 Sect: of Art. VI as amended was then agreed to.

Adjourned.

THURSDAY. AUGUST 16. IN CONVENTION.

M^r Randolph having thrown into a new form the motion putting votes, Resolutions &c. on a footing with Bills, renewed it as follows--"Every order resolution or vote, to which the concurrence of the Senate & House of Rep^s may be necessary (except on a question of adjournment and in the cases hereinafter mentioned) shall be presented to the President for his revision; and before the same shall have force shall be approved by him, or being disapproved by him shall be repa.s.sed by the Senate & House of Rep^s according to the rules & limitations prescribed in the case of a Bill."

M^r Sherman thought it unnecessary, except as to votes taking money out of the Treasury which might be provided for in another place.

On Question as moved by M^r Randolph

N. H. ay. Ma.s.s. not present. C^t ay. N. J. no. P^a ay. Del. ay.

M^d ay. V^a ay. N. C. ay. S. C. ay. Geo. ay.

The Amendment was made section 14. of Art. VI.

Art: VII. Sect. 1. taken up.

M^r L. Martin asked what was meant by the Committee of detail in the expression,--"_duties_" and "_imposts_." If the meaning were the same, the former was unnecessary; if different, the matter ought to be made clear.

M^r Wilson. _Duties_ are applicable to many objects to which the word _imposts_ does not relate. The latter are appropriated to commerce; the former extend to a variety of objects, as stamp duties &c.

M^r Carroll reminded the Convention of the great difference of interests among the States, and doubts the propriety in that point of view of letting a majority be a quorum.

M^r Mason urged the necessity of connecting with the power of levying taxes duties &c., the prohibition in Sect. 4 Art. VI that no tax should be laid on exports. He was unwilling to trust to its being done in a future article. He hoped the North^n States did not mean to deny the Southern this security. It would hereafter be as desirable to the former when the latter should become the most populous. He professed his jealousy for the productions of the Southern or as he called them, the staple States. He moved to insert the following amendment: "provided that no tax duty or imposition shall be laid by the Legislature of the U. States on articles exported from any State."

M^r Sherman had no objection to the proviso here, other than it would derange the parts of the report as made by the Committee, to take them in such an order.

M^r Rutlidge. It being of no consequence in what order points are decided, he should vote for the clause as it stood, but on condition that the subsequent part relating to negroes should also be agreed to.

M^r Governeur Morris considered such a proviso as inadmissible any where. It was so radically objectionable, that it might cost the whole system the support of some members. He contended that it would not in some cases be equitable to tax imports without taxing exports; and that taxes on exports would be often the most easy and proper of the two.

M^r Madison. 1. the power of laying taxes on exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively. 2. it might with particular advantage be exercised with regard to articles in which America was not rivalled in foreign markets, as Tob^o &c. The contract between the French Farmers Gen^l and M^r Morris stipulating that if taxes s^d be laid in america on the export of Tob^o they s^d be paid by the Farmers, shewed that it was understood by them, that the price would be thereby raised in America, and consequently the taxes be paid by the European Consumer. 3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled N.H. Con^t N. Jer^y Del: and N.

Carolina with loud complaints, as it related to imports, and they would be equally authorized by taxes by the States on exports. 4. The South^n States being most in danger and most needing naval protection, could the less complain if the burthen should be somewhat heaviest on them. 5. we are not providing for the present moment only, and time will equalize the situation of the States in this matter. He was for these reasons ag^{st} the motion.

M^r Williamson considered the clause proposed ag^{st} taxes on exports as reasonable and necessary.