the words," and a convenient number of the national Judiciary," and being voted out of order on that day, was again made on the following day; on which occasion Mr. Madison made the best speech which was made at all upon the subject, in favor of the motion; which was finally negatived, Virginia, New York, Connecticut, Aye, 3; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, N. Carolina, S. Carolina, Georgia, No, 8. The objections made to joining the Judiciary with the Executive, as a council of Revision, were, to enumerate them— 1. "That the Judiciary would 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."-[Gerry of Massachusetts. 2. That it was quite foreign from the nature of their office, to make them judges of the policy of public measures.—[Gerry and Dickinson. 3. 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. [King, Mass. 4. That it might safely be entrusted to the Executive, who would need it for self-protection and strength, and would seldom use it, less often even than a King of Great Britain. [Gerry and the Federalist. 5. That the Executive ought not to be able to divide the responsibility with the Judiciary. [Gerry, King, Dickinson, Pinckney. 6. That there was danger of a corrupt and dangerous combination of the Executive and Judiciary from their being so often associated. - [Federalist. Of these objections to Mr. Randolph's plan, it is obvious that the 2d, 3d, 5th, and 6th are entirely obviated by the differences between my plan and his. The 2d, because it makes the judiciary judges only of the constitutionality, and not "of the policy of public measures." The 3d, because the questions of policy and constitutionality not being mixed up, the judges would come to the con If the plan here proposed be compared with that for "a Council of Revision" proposed by Mr. Randolph of Virginia, in the 8th of the Resolutions presented by him at the opening of the Federal Convention, (which Resolutions became, to use the words of Mr. Madison, "the basis on which the proceedings of the Convention commenced, and to the developments, variations, and modifications of which the plan of government proposed by the Convention may be traced,”) it will be found, I think, to retain all the advantages of such a council, while it obviates all the objections, which were made to it, either in the Convention or the Federalist, and which drove the Convention to adopt the veto power as it now exists, "sub silentio," (as Mr. Madison expresses it in his report,) and, as it would seem, with evident hesitation and reluctance, after much opposition, even from those who ultimately voted for it, and apparently because the Convention did not know where else to place a check, of which the necessity was almost unanimously admitted. Mr. Randolph's Resolution which, with the debates on it, may be found in the Madison Papers, vol. 2d, pp. 733, 783, and 329, and p. 809 et seq., is as follows: "Resolved, That the Executive and a convenient number of the Judiciary ought to compose a Council of Revision, with authority to examine every act of the national legislature before it shall operate, and every act of a particular legislature, before a negative thereon shall be final, and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by of the members of each branch." On the motion of Mr. Gerry of Massachusetts, this resolution was amended so as to stand pretty much as the veto clause now does, (except that the blank, expressing the number or proportion of votes necessary to pass a bill in spite of the President's objections, was not filled,) Aye, 8 states, No, 2, (Connecticut and Maryland.) A motion was then made by Mr. Wilson of Pennsylvania, seconded by Mr. Madison, to reinsert the words," and a convenient number of the national Judiciary," and being voted out of order on that day, was again made on the following day; on which occasion Mr. Madison made the best speech which was made at all upon the subject, in favor of the motion; which was finally negatived, Virginia, New York, Connecticut, Aye, 3; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, N. Carolina, S. Carolina, Georgia, No, 8. The objections made to joining the Judiciary with the Executive, as a council of Revision, were, to enumerate them— 1. "That the Judiciary would 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."[Gerry of Massachusetts. 2. That it was quite foreign from the nature of their office, to make them judges of the policy of public measures.—[Gerry and Dickinson. 3. 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. - [King, Mass. 4. That it might safely be entrusted to the Executive, who would need it for self-protection and strength, and would seldom use it, less often even than a King of Great Britain. [Gerry and the Federalist. 5. That the Executive ought not to be able to divide the responsibility with the Judiciary. [Gerry, King, Dickinson, Pinckney. 6. That there was danger of a corrupt and dangerous combination of the Executive and Judiciary from their being so often associated. - [Federalist. Of these objections to Mr. Randolph's plan, it is obvious that the 2d, 3d, 5th, and 6th are entirely obviated by the differences between my plan and his. The 2d, because it makes the judiciary judges only of the constitutionality, and not " of the policy of public measures." The 3d, because the questions of policy and constitutionality not being mixed up, the judges would come to the con sideration of the question of constitutionality, as free from bias as when the question is presented to them by the parties. to a suit. There would be the same conflicting opinions and influences to be conciliated, and the authority, by which they would be supported or opposed, would be the same. The danger of bias does not indeed apply to the question of constitutionality, but to those questions of policy and of sectional and party interest, concerning which the opinions of those. who agitate them become exaggerated in the heat of discussion. But it is not easy to see why the Judiciary should not approach the simple question of the constitutionality of a bill, then presented to them for the first time, and separated from every other consideration, with a judgment as unbiased, before, as after its passage; or what difference it would make at what precise point in the flight of time they should come to its consideration. There would be an obvious advantage in having the question of constitutionality decided upon before a bill passes into a law before any expenses are incurred or interests staked upon it. There would then be no objection to their being biased by their own decision and action in the matter, but on the contrary, an obligation on them to be entirely governed by it. The President might even take advantage of this arrangement to have the question of constitutionality settled, in all cases where there was any doubt about it, at this much more proper and economical stage of the legislative process, by a pro formá return of a bill as unconstitutional, merely with a view of bringing it then and at once before the final arbiters of the Constitution. The 5th objection is obviated, because, although the veto power is divided, the responsibility is not, the Judiciary and the Executive having each to take the whole responsibility of the entirely distinct and separate questions assigned under this distribution to each. The 6th objection is obviated by the same division, and all dangerous and corrupt combination avoided by their not being associated at all. There remain then only the 1st and 4th objections, to which the plan now proposed is subject, in common with that of Mr. Randolph. These two, which I shall discuss together, because the considerations upon which they are founded hang together and relate to each other, rest substantially upon the four others, and, those being removed, these must fall with them. The reasoning is, that there being those objections, either to joining the Judiciary with the Executive in the revision of bills, or allowing the Judiciary to revise them at all, before they become a law, it will answer the same purpose to give that department the power of declaring them unconstitutional after they have passed into laws; and that, therefore, as there only remains the Executive department to entrust this power with, and considering that this department will be feeble, that its hands will rather need strengthening, than be prone to usurpation, the power thus in search of a location will find there a safe place of deposit. The experiment has proved the incorrectness of the last position, which at the time of the Convention was entirely matter of theory, and has shown that the Executive is the only part of the national government which has preserved, and indeed increased, its powers; that while every other part has been growing weaker, that alone has been growing stronger, and chiefly through the instrumentality of this very prerogative, a prerogative which, however less formidable when dealing only with matters of expediency and mere policy, cannot fail to strike every imagination as more awful every time it lifts its colossal form within the precincts of the Constitution, and entwines its gigantic arms, whether for support or overthrow, around the pillars upon which it rests. -- Mr. Clay has, I think, in his able speech delivered on the 21st of January, demonstrated the tendency to increase of this power. But even supposing that it is only doubtful, whether it is unsafe to entrust the Executive with a power so immense and so arbitrary, I think it can be shown, that the Executive is for other reasons and essentially as unfit to decide questions of constitutionality, as the Judiciary of pol |