Mr. WILSON means to have no council, which oftener serves to cover than prevent mal-practices.
Mr. GERRY was at a loss to discover the policy of three members for the executive. It would 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.
Massachusetts, Connecticut, Pennsylvania, Virginia, (Mr. Randolph and Mr. Blair, no; Dr. M'Clurg, Mr. Madison, and General Washington, ay; Colonel Mason being no, but not in the House; Mr. Wythe, ay, but gone home,) North Carolina, South Carolina, Georgia, ay, 7; New York, Delaware, Maryland, no, 3.89
The first clause of the eighth resolution, relating to a council of revision, was next taken into consideration.
Mr. GERRY doubts whether the judiciary ought to form a part of it, as they will have a sufficient check against 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 against the constitution. This was done, too, with general approbation. It was quite foreign from the nature of their 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 seconded 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 goes far enough. If the legislature, executive, and judiciary, ought to be distinct and 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 and judiciary jointly an absolute negative.
On the question to postpone, in order to take Mr. GERRY'S proposition into consideration, it was agreed to.
Massachusetts, New York, Pennsylvania, North Carolina, South Carolina, Georgia, ay, 6; Connecticut, Delaware, Maryland, Virginia, no, 4.
Mr. GERRY'S proposition being now before the committee, Mr. WILSON and Mr. HAMILTON move, that the last part of it (viz., "which shall not be afterwards passed by ——— parts of each blanch 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 Great Britain had not exerted his negative since the revolution.
Mr. GERRY sees no necessity for so great a control over the
