joint weight of the two departments was necessary to balance the single weight of the legislature. To the first objection stated by the other gentleman, it might be answered that, supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient; to the second objection, that such a rule of voting might be provided, in the detail, as would guard against it.

Mr. RUTLEDGE thought the judges, of all men, the most unfit to be concerned in the revisionary council. The judges ought never to give their opinion on a law, till it comes before them. He thought it equally unnecessary. The executive could advise with the officers of state, as of war, finance, &c., and avail himself of their information and opinions.

On the question on Mr. Wilson's motion for joining the judiciary in the revision of laws, it passed in the negative.

Connecticut, Maryland, Virginia, ay, 3; Massachusetts, Delaware, North Carolina, South Carolina, no, 4; Pennsylvania, Georgia, divided; New Jersey, not present, 182

The tenth resolution, giving the executive a qualified veto, requiring two thirds of each branch of the legislature to overrule it, was then agreed to, nem. con.

The motion made by Mr. Madison, on the 18th of July, and then postponed, "that the judges should be nominated by the executive, and such nominations become appointments, unless disagreed to by two thirds of the second branch of the legislature," was now resumed.183

Mr. MADISON stated, as his reasons for the motion first, that it secured the responsibility of the executive, who would in general be more capable and likely to select fit characters than the legislature, or even the second branch of it, who might hide their selfish motives under the number concerned in the appointment; secondly, that, in case of any flagrant partiality or error in the nomination, it might be fairly presumed that two thirds of the second branch would join in putting a negative on it; thirdly, that, as the second branch was very differently constituted, when the appointment of the judges was formerly referred to it, and was now to be composed of equal votes from all the states, the principle of compromise which had prevailed in other instances required, in this, that there should be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The executive magistrate would be considered as a national officer, acting for and equally sympathizing with every part of the United States. If the second branch alone should have this power, the judges might be appointed by a minority of the people, though by a majority of the states, which could not be justified on any principle, as their proceedings were to relate to the people rather than to the states; and as it would, moreover, throw the appointments entirely into the hands of the Northern States, a perpetual ground of jealousy and discontent would be furnished to the Southern States.

Mr. PINCKNEY was for placing the appointment in the second branch exclusively. The executive will possess neither the requisite knowledge of characters, nor confidence of the people for so high a

trust.

Mr. RANDOLPH would have preferred the mode of appointment proposed formerly by Mr. Gorham, as adopted in the constitution of Massachusetts, but thought the motion depending so great an improvement of the clause, as it stands, that he anxiously wished it success. He laid great stress on the responsibility of the executive, as a security for fit appointments. Appointments by the legislatures have generally resulted from cabal, from personal regard, or some other consideration than a title derived from the proper qualifications. The same inconveniences will proportionally prevail, if the appointments be referred to either branch of the legislature, or to any other authority administered by a number of individuals.

Mr. ELLSWORTH would prefer a negative in the executive on a nomination by the second branch, the negative to be overruled by a concurrence of two thirds of the second branch, to the mode proposed by the motion, but preferred an absolute appointment by the second branch to either. The executive will be regarded by the people with a jealous eye. Every power for augmenting unnecessarily his influence will be disliked. As he will be stationary, it was not to be supposed he could have a better knowledge of characters. He will be more open to caresses and intrigues than the Senate. The right to supersede his nomination will be ideal only. A nomination under such circumstances will be equivalent to an appoint

ment.

Mr. GOUVERNEUR MORRIS supported the motion. First, the states, in their corporate capacity, will frequently have an interest staked on the determination of the judges. As in the Senate the states are to vote, the judges ought not to be appointed by the Senate. Next to the impropriety of being judge in one's own cause, is the appointment of the judge. Secondly, it had been said the executive would be uninformed of characters. The reverse was the truth. The Senate will be so. They must take the character of candidates from the flattering pictures drawn by their friends. The executive, in the necessary intercourse with every part of the United States, required by the nature of his administration, will or may have the best possible information. Thirdly, it had been said that a jealousy would be entertained of the executive. If the executive can be safely trusted with the command of the army, there cannot surely be any reasonable ground of jealousy in the present case. He added that, if the objections against an appointment of the executive by the legislature had the weight that had been allowed, there must be some weight in the objection to an appointment of the judges by the legislature, or by any part of it.

Mr. GERRY. The appointment of the judges, like every other part of the Constitution, should be so modelled as to give satisfaction

both to the people and to the states. The mode under consideration will give satisfaction to neither. He could not conceive that the executive could be as well informed of characters throughout the Union as the Senate. It appeared to him, also, a strong objection, that two thirds of the Senate were required, to reject a nomination of the executive. The Senate would be constituted in the same manner as Congress, and the appointments of Congress have been generally good.

Mr. MADISON observed, that he was not anxious that two thirds should be necessary to disagree to a nomination. He had given this form to his motion, chiefly to vary it the more clearly from one which had just been rejected. He was content to obviate the objection last made, and accordingly so varied the motion as to let a majority reject.

Col. MASON found it his duty to differ from his colleagues in their opinions and reasonings on this subject. Notwithstanding the form of the proposition, by which the appointment seemed to be divided between the executive and Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the executive as a dangerous prerogative. It might even give him an influence over the judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate, and require some precautions in the case of regulating navigation, commerce, and imposts; but he could not see that it had any connection with the judiciary department.

On the question, the motion being now "that the executive should nominate, and such nominations should become appointments unless disagreed to by the Senate,"

Massachusetts, Pennsylvania, Virginia, ay, 3; Connecticut, Delaware, Maryland, North Carolina, South Carolina, Georgia, no, 6.184

On the question for agreeing to the clause as it stands, by which the judges are to be appointed by the second branch, —

Connecticut, Delaware, Maryland, North Carolina South Carolina, Georgia, ay, 6; Massachusetts, Pennsylvania, Virginia, no, 3.

So it passed in the affirmative.

Adjourned.

MONDAY, July 23.

In Convention. Mr. John Langdon and Mr. Nicholas Gillman, from New Hampshire, took their seats.

The seventeenth resolution, that provision ought to be made for future amendments of the articles of the Union, was agreed to, nem.

con.

The eighteenth resolution, requiring the legislative, executive, and judiciary of the states to be bound by oath to support the Articles of Union, was taken into consideration.

Mr. WILLIAMSON suggests, that a reciprocal oath should be required from the national officers, to support the governments of the

states.

Mr. GERRY moved to insert, as an amendment, that the oath of the officers of the national government, also, should extend to the support of the national government, which was agreed to, nem. con.

Mr. WILSON said, he was never fond of oaths, considering them as a left-handed security only. A good government did not need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of the existing government, in case future alterations should be necessary, and prove an obstacle to the seventeenth resolution, just agreed to.

Mr. GORHAM did not know that oaths would be of much use, but could see no inconsistency between them and the seventeenth resolution, or any regular amendment of the Constitution. The oath could only require fidelity to the existing Constitution. A constitutional alteration of the Constitution could never be regarded as a breach of the Constitution, or of any oath to support it.

Mr. GERRY thought, with Mr. Gorham, there could be no shadow of inconsistency in the case. Nor could he see any other harm that could result from the resolution. On the other side, he thought one good effect would be produced by it. Hitherto the officers of the two governments had considered them as distinct from, and not as parts of, the general system, and had, in all cases of interference, given a preference to the state governments. The proposed oath will

cure that error.

The resolution (the eighteenth) was agreed to, nem. con.

The nineteenth resolution, referring the new Constitution to assemblies to be chosen by the people, for the express purpose of ratifying it, was next taken into consideration.

Mr. ELLSWORTH moved that it be referred to the legislatures of the states for ratification. Mr. PATTERSON seconded the motion.

Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it. They are the mere creatures of the state constitutions, and cannot be greater than their creators. And he knew of no power in any of the constitutions

he knew there was no power in some of them that could be competent to this object. Whither, then, must we resort? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished, as the basis of free government. Another strong reason was, that, admitting the legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding legislatures, having equal authority, could undo the acts of their predecessors; and the national government would stand, in each state, on the weak and tottering foundation

of an act of assembly. There was a remaining consideration, of some weight. In some of the states, the governments were not derived from the clear and undisputed authority of the people. This was the case in Virginia. Some of the best and wisest citizens considered the constitution as established by an assumed authority. A national constitution derived from such a source would be exposed to the severest criticisms.

Mr. RANDOLPH. One idea has pervaded all our proceedings, to wit, that opposition as well from the states as from individuals will be made to the system to be proposed. Will it not then be highly imprudent to furnish any unnecessary pretext, by the mode of ratifying it? Added to other objections against a ratification by the legislative authority only, it may be remarked, that there have been instances in which the authority of the common law has been set up in particular states against that of the Confederation, which has had no higher sanction than legislative ratification. Whose opposition will be most likely to be excited against the system? That of the local demagogues who will be degraded by it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his present opinions with those he brought with him into the Convention. It is of great importance, therefore, that the consideration of this subject should be transferred from the legislatures, where this class of men have their full influence, to a field in which their efforts can be less mischievous. It is moreover

worthy of consideration, that some of the states are averse to any change in their constitution, and will not take the requisite steps, unless expressly called upon, to refer the question to the people.

Mr. GERRY. The arguments of Col. Mason and Mr. Randolph prove too much. They prove an unconstitutionality in the present federal system, and even in some of the state governments. Inferences drawn from such a source must be inadmissible. Both the state governments and the federal government have been too long acquiesced in, to be now shaken. He considered the Confederation to be paramount to any state constitution. The last article of it, authorizing alterations, must consequently be so as well as the others; and every thing done in pursuance of the article must have the same high authority with the article. Great confusion, he was confident, would result from a recurrence to the people. They would never agree on any thing. He could not see any ground to suppose, that the people will do what their rulers will not. The rulers will either conform to or influence the sense of the people.

Mr. GORHAM was against referring the plan to the legislatures. 1. Men chosen by the people for the particular purpose will discuss the subject more candidly than members of the legislature, who are to lose the power which is to be given up to the general government. 2. Some of the legislatures are composed of several branches. It