JFC2017 – Page 7 – Warren Throckmorton

The 1787 Constitutional Convention – Presidential Veto Debated

August 15, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates debated the way bills would be introduced in the legislature and then moved to affirm the power of the president to veto legislation. Madison struck out after four tries to get a committee of revision for legislation. Instead the veto was established as a way for the executive branch to negative bills.

Influences on the Delegates

Mr. Mercer appealed positively to the example of Great Britain:

Mr. MERCER should hereafter be against 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.

Dickinson appealed to the example of the “Justiciary of Arragon.” This Spanish reference is explained here, but he was signaling his fear that judges would become makers of law.

Mr. DICKINSON 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 law-giver.

Morris got in references to Sparta, Rome, England and Pennsylvania:

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 against. The Ephori at Sparta became in the end absolute. The Report of the Council of Censors in Pennsylvania points out the many invasions of the Legislative department on the Executive, numerous as the latter¹ 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 against 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 two thirds only to overrule the negative of the Executive.

Wilson did not want to become like England.

Mr. WILSON, after viewing the subject with all the coolness and attention possible, was most apprehensive of a dissolution of the Government from the Legislature swallowing up all the other powers. He remarked, that the prejudices against 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 tyranny sprang up in the Parliament, than had been exercised by the monarch. He insisted that we had not guarded against the danger on this side, by a sufficient self-defensive power, either to the Executive or Judiciary Department.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here. In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
Constitutional Convention Series (click the link)
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The 1787 Constitutional Convention – Avoiding Aristocracies

August 14, 1787 (Click to read Madison’s notes on the day)

Summary

A lot of debate today with little action. The delegates decided that the legislators should be paid from the National Treasury and debated over their fears of creating an aristocracy.

Influences on the Delegates

The delegates worried a lot about creating a system which would be exploited by men wanting power and wealth. Sherman summed up by saying:

The Constitution should lay as few temptations as possible in the way of those in power. Men of abilities will increase as the country grows more populous, and as the means of education are more diffused.

James Wilson was fond of referring to the positives in his own state of Pennsylvania.

Mr. WILSON could not approve of the section as it stood, and could not give up his judgment to any supposed objections that might arise among the people. He considered himself as acting and responsible for the welfare of millions not immediately represented in this House. He had also asked himself the serious question, what he should say to his constituents, in case they should call upon him to tell them why he sacrificed his own judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort, — did you suppose the people of Pennsylvania had not good sense enough to receive a good government? Under this impression, he should certainly follow his own judgment, which disapproved of the section. He would remark, in addition to the objections urged against it, that as one branch of the Legislature was to be appointed by the Legislatures of the States, the other by the people of the States; as both are to be paid by the States, and to be appointable to state offices; nothing seemed to be wanting to prostrate the National Legislature, but to render its members ineligible to national offices, and by that means take away its power of attracting those talents which were necessary to give weight to the Government, and to render it useful to the people. He was far from thinking the ambition which aspired to offices of dignity and trust an ignoble or culpable one. He was sure it was not politic to regard it in that light, or to withhold from it the prospect of those rewards which might engage it in the career of public service. He observed that the State of Pennsylvania, which had gone as far as any State into the policy of fettering power, had not rendered the members of the Legislature ineligible to offices of government.

The experience of the states was critical in the formation of the Constitution.

Mr. MADISON. If the House of Representatives is to be chosen biennially, and the Senate to be constantly dependent on the Legislatures, which are chosen annually, he could not see any chance for that stability in the General Government, the want of which was a principal evil in the State Governments. His fear was, that the organization of the Government supposing the Senate to be really independent for six years, would not effect our purpose. It was nothing more than a combination of the peculiarities of two of the State Governments, which separately had been found insufficient. The Senate was formed on the model of that of Maryland. The revisionary check, on that of New York. What the effect of a union of these provisions might be, could not be foreseen. The enlargement of the sphere of the Government was indeed a circumstance which he thought would be favorable, as he had on several occasions, undertaken to show. He was, however, for fixing at least two extremes not to be exceeded by the National Legislature in the payment of themselves.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – Citizenship Requirements Debated

August 13, 1787 (click the link to read Madison’s notes)

Summary

Again, the delegates spent this day fine tuning details of the working of Congress. A major focus was the number of years of citizenship required to serve in the House and Senate.

Influences on the Delegates

In light of the Russian involvement in the last election, the debate over citizenship instructs us that the delegates had the same concerns we now have.

Mr. WILSON and Mr. RANDOLPH moved to strike out “seven years,” and insert, “four years,” as the requisite term of citizenship to qualify for the House of Representatives. Mr. WILSON said it was very proper the electors should govern themselves by this consideration; but unnecessary and improper that the Constitution should chain them down to it.
Mr. GERRY wished that in future the elegibility might be confined to natives. Foreign powers will intermeddle in our affairs, and spare no expense to influence them. Persons having foreign attachments will be sent among us and insinuated into our councils, in order to be made instruments for their purposes. Every one knows the vast sums laid out in Europe for secret services. He was not singular in these ideas. A great many of the most influential men in Massachusetts reasoned in the same manner.
Mr. WILLIAMSON moved to insert nine years instead of seven. He wished this country to acquire as fast as possible national habits. Wealthy emigrants do more harm by their luxurious examples, than good by the money they bring with them.
Mr. WILSON cited Pennsylvania as a proof of the advantage of encouraging emigrations. It was perhaps the youngest settlement (except Georgia) on the Atlantic; yet it was at least among the foremost in population and prosperity. He remarked, that almost all the general officers of the Pennsylvania line of the late army were foreigners; and no complaint had ever been made against their fidelity or merit. Three of her Deputies to the Convention (Mr. R. MORRIS, Mr. FITZSIMONS, and himself) were also not natives. He had no objection to Colonel HAMILTON’S motion, and would withdraw the one made by himself.
Mr. BUTLER was strenuous against admitting foreigners into our public councils.

George Mason looked to England and France for assistance.

The practice in England was in point. The House of Lords does not represent nor tax the people, because not elected by the people. If the Senate can originate, they will in the recess of the Legislative sessions, hatch their mischievous projects, for their own purposes, and have their money bills cut and dried (to use a common phrase) for the meeting of the House of Representatives. He compared the case to Poyning’s law, and signified that the House of Representatives might be rendered by degrees, like the Parliament of Paris, the mere depository of the decrees of the Senate. As to the compromise, so much had passed on that subject that he would say nothing about it. He did not mean, by what he had said, to oppose the permanency of the Senate. On the contrary he had no repugnance to an increase of it, nor to allowing it a negative, though the Senate was not, by its present constitution, entitled to it. But in all events, he would contend that the purse-strings should be in the hands of the representatives of the people.

Using England as an example, James Wilson of PA thought it a bad idea to keep money bills just in the House.

Mr. WILSON was himself directly opposed to the equality of votes granted to the Senate, by its present constitution. At the same time he wished not to multiply the vices of the system. He did not mean to enlarge on a subject which had been so much canvassed, but would remark, as an insuperable objection against the proposed restriction of money bills to the House of Representatives, that it would be a source of perpetual contentions, where there was no mediator to decide them. The President here could not, like the Executive Magistrate in England, interpose by a prorogation, or dissolution. This restriction had been found pregnant with altercation in every State where the constitution had established it. The House of Representatives will insert other things in money bills, and by making them conditions of each other destroy the deliberate liberty of the Senate. He stated the case of a preamble to a money bill sent up by the House of Commons in the reign of Queen Anne, to the House of Lords, in which the conduct of the misplaced Ministry, who were to be impeached before the Lords, was condemned; the commons thus extorting a premature judgment without any hearing of the parties to be tried, and the House of Lords being thus reduced to the poor and disgraceful expedient of opposing, to the authority of a law, a protest on their Journals against its being drawn into precedent. If there was any thing like Poyning’s law in the present case, it was in the attempt to vest the exclusive right of originating in the House of Representatives, and so far he was against it. He should be equally so if the right were to be exclusively vested in the Senate. With regard to the purse-strings, it was to be observed that the purse was to have two strings, one of which was in the hands of the House of Representatives, the other in those of the Senate. Both Houses must concur in untying, and of what importance could it be which untied first, which last. He could not conceive it to be any objection to the Senate’s preparing the bills, that they would have leisure for that purpose, and would be in the habits of business. War, commerce, and revenue were the great objects of the General Government. All of them are connected with money. The restriction in favor of the House of Representatives would exclude the Senate from originating any important bills whatever.

The delegates revisited the citizenship requirement but left it as it was.
John Dickinson extolled the wisdom of acting on experience rather than reason.

Mr. DICKINSON. Experience must be our only guide. Reason may mislead us. It was not reason that discovered the singular and admirable mechanism of the English constitution. It was not reason that discovered, or ever could have discovered, the odd, and, in the eyes of those who are governed by reason, the absurd mode of trial by jury. Accidents probably produced these discoveries, and experience has given a sanction to them. This is, then, our guide. And has not experience verified the utility of restraining money bills to the immediate representatives of the people? Whence the effect may have proceeded, he could not say; whether from the respect with which this privilege inspired the other branches of government, to the House of Commons, or from the turn of thinking it gave to the people at large with regard to their rights; but the effect was visible and could not be doubted.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – More Legislative Fine Tuning

August 11, 1787 (click the link to read Madison’s notes)

Summary

The delegates spent this day fine tuning details of the working of Congress. They took up the recording of sessions and votes and adjournment and finish by promising to revisit the pesky issue of where to locate money bills (i.e., the House, Senate, both).

Influences on the Delegates

Edmund Randolph moved to reconsider the issue of the source of legislation relating to money using Britain as a positive example.

Mr. RANDOLPH moved, according to notice, to reconsider Article 4, Sect. 5, concerning money bills, which had been struck out. He argued, — first, that he had not wished for this privilege, whilst a proportional representation in the Senate was in contemplation: but since an equality had been fixed in that House, the large States would require this compensation at least. Secondly, that it would make the plan more acceptable to the people, because they will consider the Senate as the more aristocratic body, and will expect that the usual guards against its influence will be provided, according to the example of Great Britain. Thirdly, the privilege will give some advantage to the House of Representatives, if it extends to the originating only; but still more, if it restrains the Senate from amending. Fourthly he called on the smaller States to concur in the measure, as the condition by which alone the compromise had entitled them to an equality in the Senate. He signified that he should propose, instead of the original section, a clause specifying that the bills in question should be for the purpose of revenue, in order to repel the objection against the extent of the words, “raising money,” which might happen incidentally; and that the Senate should not so amend or alter as to increase or diminish the sum; in order to obviate the inconveniences urged against a restriction of the Senate to a simple affirmation or negative.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – Ben Franklin Cited Scripture

August 10, 1787 (click here to read Madison’s notes)

Summary

Various details about residency, qualifications and quorum requirements were debated. Ownership of property with a specific value as a qualification was voted down.

Influences on the Delegates

At last, another reference to religion and the Bible, again from Ben Franklin.

Doctor FRANKLIN expressed his dislike to every thing that tended to debase the spirit of the common people. If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. Some of the greatest rogues he was ever acquainted with were the richest rogues. We should remember the character which the Scripture requires in rulers, that they should be men hating covetousness. This Constitution will be much read and attended to in Europe; and if it should betray a great partiality to the rich, will not only hurt us in the esteem of the most liberal and enlightened men there, but discourage the common people from removing to this country.

While Franklin believed leaders should hate covetousness, I suspect this is more a rhetorical device than using the Bible as a policy foundation. I say that because he hastened to add to his Scripture reference that he was also concerned that Europeans would have withheld esteem from Americans as liberal and enlightened if we required wealth to run for office. In any case, Charles Pinckney’s proposal to set a level of property ownership as a qualification was not popular and went down to defeat.
Madison used the British Parliament as a negative example.

Mr. MADISON observed that the British Parliament possessed the power of regulating the qualifications both of the electors and the elected; and the abuse they had made of it was a lesson worthy of our attention. They had made the changes, in both cases, subservient to their own views, or to the views of political or religious parties.

John Mercer from Maryland, appealed to Britain in a positive manner on setting a quorum.

Mr. MERCER was also for less than a majority. So great a number will put it in the power of a few, by seceding at a critical moment, to introduce convulsions, and endanger the Government. Examples of secession have already happened in some of the States. He was for leaving it to the Legislature to fix the quorum, as in Great Britain, where the requisite number is small, and no inconvenience has been experienced.