Madison’s Notes: Federal Convention of 1787: Sept. 3

Liberty Letters, 3 September 1787, James Madison

Editor’s Overview: After a few small refinements to previously passed measures, the most significant discussion of the day was over the issue of eligibility to serve in civil service positions (and elsewhere in government) while serving in Congress. Pinkney was strenuously opposed to an ineligibility of members to office. He considered the eligibility of members of the Legislature to the honorable offices of Government, as resembling the policy of the Romans, in making the temple of virtue the road to the temple of fame. Mr. Williamson seconded the motion. He did not see why members of the Legislature should be ineligible to vacancies happening during the term of their election. Sherman was for entirely incapacitating members of the Legislature. He thought their eligibility to offices would give too much influence to the Executive. Morris contended that the eligibility of members to office would lessen the influence of the Executive. If they cannot be appointed themselves, the Executive will appoint their relations and friends, retaining the service and votes of the members for his purposes in the Legislature. Whereas the appointment of the members deprives him of such an advantage. Mason said that instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters. And so the debate continued. The the measure passed in favor of ineligibility and with restrictions upon emoluments while in office.

Steve Farrell

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Mr. GOVr. MORRIS moved to amend the Report concerning the respect to be paid to Acts Records &c of one State, in other States (see September 1) by striking out “judgments obtained in one State shall have in another” and to insert the word “thereof” after the word “effect”

COL. MASON favored the motion, particularly if the “effect” was to be restrained to judgments and Judicial proceedings Mr. WILSON remarked, that if the Legislature were not allowed to declare the effect the provision would amount to nothing more than what now takes place among all Independent Nations.

DOCTOR JOHNSON thought the amendment as worded would authorize the General Legislature to declare the effect of Legislative acts of one State, in another State.

Mr. RANDOLPH considered it as strengthening the general objection against the plan, that its definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going farther than the Report, which enables the Legislature to provide for the effect of Judgments.

On the amendment as moved by Mr. Govr. Morris

Mas. ay. Ct. ay. N. J. ay. Pa. ay. Md. no. Va. no. N. C. ay. S. C. ay. Geo. no.

On motion of Mr. MADISON,  “ought to” was struck out, and “shall” inserted; and “shall” between “Legislature” and “by general laws” struck out, and “may” inserted, nem: con:

On the question to agree to the report as amended viz “Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and the Legislature may by general laws prescribe the manner in which such acts records and proceedings shall be proved, and the effect thereof” Agreed to without a count of states.

The clause in the Report “To establish uniform laws on the subject of Bankruptcies” being taken up.

Mr. SHERMAN observed that Bankruptcies were in some cases punishable with death by the laws of England, and He did not choose to grant a power by which that might be done here.

Mr. GOVr. MORRIS said this was an extensive and delicate subject. He would agree to it because he saw no danger of abuse of the power by the Legislature of the United States.

On the question to agree to the clause

N. H. ay. Mas. ay. Ct. no. N. J. ay. Pa. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay.

Mr. PINKNEY moved to postpone the Report of the Committee of Eleven (see September 1) in order to take up the following,

“The members of each House shall be incapable of holding any office under the United States for which they or any other for their benefit, receive any salary, fees or emoluments of any kind, and the acceptance of such office shall vacate their seats respectively.” He was strenuously opposed to an ineligibility of members to office, and therefore wished to restrain the proposition to a mere incompatibility. He considered the eligibility of members of the Legislature to the honorable offices of Government, as resembling the policy of the Romans, in making the temple of virtue the road to the temple of fame.

On this question

N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Md. no. Va. no. N. C. ay. S. C. no. Geo. no.

Mr. KING moved to insert the word “created” before the word “during” in the Report of the Committee. This he said would exclude the members of the first Legislature under the Constitution, as most of the offices would then be created.

Mr. WILLIAMSON 2ded. the motion. He did not see why members of the Legislature should be ineligible to vacancies happening during the term of their election.

Mr. SHERMAN was for entirely incapacitating members of the Legislature. He thought their eligibility to offices would give too much influence to the Executive. He said the incapacity ought at least to be extended to cases where salaries should be increased as well as created, during the term of the member. He mentioned also the expedient by which the restriction could be evaded to wit: an existing officer might be translated to an office created, and a member of the Legislature be then put into the office vacated.

Mr. GOVr. MORRIS contended that the eligibility of members to office would lessen the influence of the Executive. If they cannot be appointed themselves, the Executive will appoint their relations and friends, retaining the service and votes of the members for his purposes in the Legislature. Whereas the appointment of the members deprives him of such an advantage.

Mr. GERRY. thought the eligibility of members would have the effect of opening batteries against. good officers, in order to drive them out and make way for members of the Legislature.

Mr. GORHAM was in favor of the amendment. Without it we go further than has been done in any of the States, or indeed any other Country. The experience of the State Governments where there was no such ineligibility, proved that it was not necessary; on the contrary that the eligibility was among the inducements for fit men to enter into the Legislative service

Mr. RANDOLPH was inflexibly fixed against inviting men into the Legislature by the prospect of being appointed to offices.

Mr. BALDWIN remarked that the example of the States was not applicable. The Legislatures there are so numerous that an exclusion of their members would not leave proper men for offices. The case would be otherwise in the General Government.

Col: MASON. Instead of excluding merit, the ineligibility will keep out corruption, by excluding office-hunters.

Mr. WILSON considered the exclusion of members of the Legislature, as increasing the influence of the Executive as observed by Mr. Govr. Morris at the same time that it would diminish, the general energy of the Government. He said that the legal disqualification for office would be odious to those who did not wish for office, but did not wish either to be marked by so degrading a distinction.

Mr. PINKNEY. The first Legislature will be composed of the ablest men to be found. The States will select such to put the Government into operation. Should the Report of the Committee or even the amendment be agreed to, The great offices, even those of the Judiciary Department which are to continue for life, must be filled whilst those most capable of filling them will be under a disqualification.

On the question on Mr. King’s motion

N. H. ay. Mas. ay. Ct. no. N. J. no. Pa. ay. Md. no. Va. ay. N. C. ay. S. C. no. Geo. no.

The amendment being thus lost by the equal division of the States, Mr. WILLIAMSON moved to insert the words “created or the emoluments whereof shall have been increased” before the word “during” in the Report of the Committee

Mr. KING seconded the motion, and

On the question

N. H. ay. Mas. ay. Ct. no. N. J. no. Pa. ay. Md. no. Va. ay

N. C. ay. S. C. no. Geo. divided. 10

The last clause rendering a Seat in the Legislature and an office incompatible was agreed to nem. con:

The Report as amended & agreed to is as follows.

“The members of each House shall be ineligible to any Civil office under the authority of the United States, created, or the emoluments whereof shall have been increased during the time for which they shall respectively be elected — and no person holding any office under the United States shall be a member of either House during his continuance in office.”

Adjourned

Table of Contents: Madison’s Notes

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This version of Madison’s Notes on the Federal Convention of 1787 with editor’s overview, spelling modernized, punctuation added, some short hand eliminated, and links added: Copyright © 2011 Steve Farrell and The Moral Liberal.