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ly 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 and seconded to postpone the question of impeachments; which was negatived,—Massachusetts and South Carolina, only, being aye.
On the question, Shall the Executive be removable on impeachments, &c. ?/Connecticut, New Jer. sey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, aye-8; Massachusetts, South Carolina, no—2.
“The Executive to receive fixed compensation,”— agreed to, nem. con.
“To be paid out of the National Treasury,"— agreed to, New Jersey only in the negative.
Mr. GERRY and Mr. GOUVERNEUR Morris moved, " that the Electors of the Executive shall not be members of the National Legislature, nor officers of the United States, nor shall the Electors themselves be eligible to the supreme magistracy.” Agreed to,
Doctor 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 against 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 Res. olutions now stand, the Committee will have no determinate directions on this great point.
Mr. Wilson thought that some additional directions to the Committee would 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.
SATURDAY, July 21st.
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 the tenth Resolution, “that the Supreme National 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 against 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 may 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 those characters of a law, and of counteracting, by the weight of their opinions, the improper views of the Legislature.—Mr. MADISON seconded the motion.
Mr. Gorham 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 the Judges for their opinions.
Mr. ELLSWORTH approved heartily of the motion. The aid of the Judges will give more wisdom and firmness to the Executive. They will possess a systematic and accurate knowledge of the laws, which the Executive cannot 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 Department by giving it an additional opportunity of defending itself against Legislative encroachments. It would be useful to the Executive, by inspiring additional confidence and 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, and technical propriety in the laws, qualities peculiarly necessary, and yet shamefully wanting in our Republican codes. It would, moreover, be useful to the community at large, as an additional check against a pursuit of those unwise and unjust measures which constituted so great a portion of our calamities. If any solid objection could be urged against 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; and 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 against 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 and mixing together the Legislative and the other departments. It was establishing an improper coalition between the Executive and 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 and 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 Pennsylvania, 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 passing the laws.
Mr. GOUVERNEUR 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 six years, and impeachable whilst in office, would be a very effectual check. On the other side, it was urged, that he ought to be reinforced by the Judici