The Debates in the
Federal Convention of 1787
AUGUST 15. IN CONVENTION
Art: VI. Sect. 11. 1, 2
Agreed to nem. con.
Art: VI Sect. 12. 1, 3
Mr. STRONG moved to amend the article so
as to read — "Each House shall possess the right of originating all
bills, except bills for raising money for the purposes of revenue, or for
appropriating the same and for fixing the salaries of the officers of the Govt.
which shall originate in the House of Representatives; but the Senate may
propose or concur with amendments as in other cases"
Col. MASON, 2ds. the motion. He was extremely
earnest to take this power from the Senate, who he said could already sell the
whole Country by means of Treaties.
Mr. GHORUM urged the amendment as of
great importance. The Senate will first acquire the habit of preparing money
bills, and then the practice will grow into an exclusive right of preparing
Mr. GOVERNr. MORRIS opposed it as unnecessary and inconvenient.
Mr. WILLIAMSON. some think this
restriction on the Senate essential to liberty, others think it of no
importance. Why should not the former be indulged. he was for an efficient and
stable Govt. but many would not strengthen the Senate if not restricted in the
case of money bills. The friends of the Senate would therefore lose more than
they would gain by refusing to gratify the other side. He moved to postpone the
subject till the powers of the Senate should be gone over.
Mr. RUTLIDGE 2ds. the motion.
Mr. MERCER should hereafter be agst.
returning to a reconsideration of this section. He contended, (alluding to Mr.
Mason's observations) that the Senate ought not to have the power of treaties.
This power belonged to the Executive department; adding that Treaties would not
be final so as to alter the laws of the land, till ratified by legislative
authority. This was the case of Treaties in Great Britain; particularly the late
Treaty of Commerce with France.
Col. MASON. did not say that a Treaty would repeal a
law; but that the Senate by means of treaty 4
might alienate territory &c, without legislative sanction. The cessions of
the British Islands in
5 W. Indies by Treaty alone were an
example. If Spain should possess herself of Georgia therefore the Senate might
by treaty dismember the Union. He wished the motion to be decided now, that the
friends of it might know how to conduct themselves.
On 5 question for postponing Sec: 12.
it passed in the affirmative.
N. H. ay. Mas. ay Ct. no. N. J. no Pena. no. Del. no Maryd. no. Va. ay. N.
C. ay. S. C. ay. Geo. ay. — 6
Mr. MADISON moved that all acts before
they become laws should be submitted both to the Executive and Supreme Judiciary
Departments, that if either of these should object 2/3 of each House, if both
should object, 3/4 of each House, should be necessary to overrule the objections
and give to the acts the force of law — 7
See the motion at large in the Journal of this date, page 253, & insert
it here." 8
["Every bill which shall have passed 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 passed 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 pass 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."]
Mr. WILSON seconds the motion
Mr. 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.
Mr. 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 Constitution
should have authority to declare a law void. He thought laws ought to be well
and cautiously made, and then to be uncontroulable.
Mr. GERRY. This motion comes to the same
thing with what had been already negatived.
10 Question on the motion of Mr.
N. H. no. Mass. no. Ct. no. N. J. no. Pa. no. Del. ay. Maryd. ay. Virga. ay.
N. C. no. S. C. no. Geo. no. 11
Mr. GOVr. 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 Assemblies.
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 constituted [elected by the
12 Congress]. The legislature will
contrive to soften down the President. He recited the history of paper
emissions, and the perseverance of the legislative assemblies 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 passage of
laws, and the frequency of those repeals which destroy faith in the public, and
which are among our greatest calamities. —
Mr. DICKENSON was strongly impressed
with the remark of Mr. 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 substitute. The Justiciary of Arragon he observed became by
degrees, the lawgiver.
Mr. GOVr. 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 Constitution 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 agst. The Ephori at Sparta became in the end absolute. The Report of the
Council of Censors in Pennsylva. points out the many invasions of the
legislative department on the Executive numerous as the latter
*13 is, within the short term of seven
years, and in a State where a strong party is opposed to the Constitution, and
watching every occasion of turning the public resentments agst. 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.
Mr. 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.
Mr. 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.
Mr. 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.
Mr. WILSON; after viewing the subject
with all the coolness and attention possible was most apprehensive of a
dissolution of the Govt. from the legislature swallowing up all the other
powers. He remarked that the prejudices agst. 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 associated in the minds of people; not legislature and tyranny.
But where the Executive was not formidable, the two last were most properly
associated. After the destruction of the King in Great Britain, a more pure and
unmixed tryanny sprang up in the parliament than had been exercised by the
monarch. He insisted that we had not guarded agst. the danger on this side by a
sufficient self-defensive power either to the Executive or Judiciary department.
Mr. RUTLIDGE was strenuous agst. postponing; and
complained much of the tediousness of the proceedings.
Mr. ELSEWORTH held the same language. We grow more &
more skeptical as we proceed. If we do not decide soon, we shall be unable to
come to any decision.
The question for postponement passed in the negative: Del: & Maryd. only
being in the affirmative.
Mr. 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
Presidt. alone, to admitting the Judges into the business of legislation.
Mr. WILSON 2ds. the motion; referring to and
repeating the ideas of Mr. Carroll.
On this motion for 3/4 . instead of two thirds; it passed in the affirmative
N. H. no. Mas. no. Ct. ay. N. J. no. Pena. divd. Del. ay. Md. ay. Va. ay. N.
C. ay. S. C. ay. Geo. no. 15
Mr. 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
16 being as follows,
N. H. no. Mas. ay. Ct. no. N. J. no. Pena. no. Del. ay. Md. no. Va. no. N.
C. ay. S. C. no. Geo. no. 17
"Ten 18 days (Sundays
excepted)" instead of "seven" were allowed to the
President for returning bills with his objections N. H. & Mas: only voting
The 13 Sect: of art. VI as amended was then agreed to.
1. See ante.
2. The word "was" is here
inserted in the transcript.
3. The words "was then" are here
inserted in the transcript.
4. The transcript uses the word "treaty"
in the plural.
5. The word "the" is here
inserted in the transcript.
6. In the transcript the vote reads: "New
Hampshire, Massachusetts, Virginia, North Carolina, South Carolina, Georgia, aye
— 6; Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, no —
7. This paragraph is stricken out in the
8. Madison's direction concerning the
motion is omitted in the transcript and the following sentence is inserted: "Mr.
Madison moved the following amendment of Article 6, Section 13."
9. See ante.
10. The words "On the" are here
inserted in the transcript.
11. In the transcript the vote reads: "Delaware,
Maryland, Virginia, aye — 3; New Hampshire, Massachusetts, Connecticut, New
Jersey, Pennsylvania, North Carolina, South Carolina, Georgia, no — 8."
12. The word "the" is omitted
in the transcript.
*13. The Executive consists at this time
14 of abt. 20 members.
14. The phrase "consisted at that
time" is substituted in the transcript for "consists at this time."
15. In the transcript the vote reads: "Connecticut,
Delaware, Maryland, Virginia, North Carolina, South Carolina, aye — 6; New
Hampshire, Massachusetts, New Jersey, Georgia, no — 4; Pennsylvania,
16. The word "votes" is
substituted in the transcript for "States."
17. In the transcript the vote reads: "Massachusetts,
Delaware, North Carolina, aye — 3; New Hampshire, Connecticut, New Jersey,
Pennsylvania, Maryland, Virginia, South Carolina, Georgia, no — 8."
18. The transcript does not italicize the