Skip to comments.Journal of the Federal Convention September 3rd 1787
Posted on 09/03/2011 2:22:17 AM PDT by Jacquerie
Bankruptcies. Full Faith & Credit. Appointive Office Corruption.
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 Sepr. 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 & 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.
Docr. JOHNSON thought the amendment as worded would authorise the Genl. Legislature to declare the effect of Legislative acts of one State, in another State.
Mr. RANDOLPH considered it as strengthening the general objection agst. 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. [FN2]
On motion of Mr. MADISON, [FN3] "ought to" was [FN4] struck out, and "shall" inserted; and "shall" between "Legislature" & "by general laws" struck out, and "may" inserted, nem: con:
On the question to agree to the report as amended viz "Full faith & credit shall be given in each State to the public acts, records & judicial proceedings of every other State, and the Legislature may by general laws prescribe the manner in which such acts records & proceedings shall be proved, and the effect thereof" [FN5] Agreed to witht. a count of [FN6] Sts.
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, & He did not chuse to grant a power by which that might be done here.
Mr. Govr. MORRIS said this was an extensive & delicate subject. He would agree to it because he saw no danger of abuse of the power by the Legislature of the U. S.
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. [FN7]
Mr. PINKNEY moved to postpone the Report of the Committee of Eleven (see Sepr. 1) in order to take up the following, "The members of each House shall be incapable of holding any office under the U. S. 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. [FN8]
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 wd. 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 wd. lessen the influence of the Executive. If they cannot be appointed themselves, the Executive will appoint their relations & friends, retaining the service & 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 agst. good officers, in order to drive them out & 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. [FN9]
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 2ded. the motion, & 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. [FN10]
The last clause rendering a Seat in the Legislature & 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 U. 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 U. S. shall be a member of either House during his continuance in office."
FN1 The year "1787" is omitted in the transcript.
FN2 In the transcript the vote reads: "Massachusetts, Connecticut, New Jersey, Pennylvania, North Carolina, South Carolina, aye-6; Maryland, Virginia, Georgia, no-3."
FN3 The expression "the words" is here inserted in the transcript.
FN4 The word "was" is crossed out in the transcript and "were" is written above it.
FN5 the words "it was" are here inserted in the transcript.
FN6 The word "the" is here inserted in the transcript.
FN7 In place of the vote by States the transcript reads: "Pennsylvania. North Carolina, aye-2; New Hampshire, Massachusetts, Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, no-8."
FN9 In the transcript the vote reads: "New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, aye-5; Connecticut, New Jersey, Maryland, South Carolina, aye-4; Georgia, divided."
The section would thus read, "Full faith and credit ought to be given in each State to the public acts, records, and Judicial proceedings of every other State, and the Legislature shall by general laws prescribe the manner in which such acts, Records, & proceedings shall be proved, and the effect thereof.
George Mason supported the motion, as it appeared to be restricted to judgments and judicial proceedings.
Mr. Wilson said that unless the Congress could determine the effect, it would change nothing that does not already exist among Sovereign nations.
Samuel Johnson disagreed; it would allow Congress to determine the effect of one State law in another State.
Edmund Randolph warned the Convention that such loose wording would supplement opposition to the plan. He would go no further than the Report.
Mr. Morris motion passed 6-3.
James Madison further motioned some wordsmithing which passed without opposition.
The amended report, "Full faith & credit shall be given in each State to the public acts, records & judicial proceedings of every other State, and the Legislature may by general laws prescribe the manner in which such acts records & proceedings shall be proved, and the effect thereof," passed by acclamation.
The clause in the Report "To establish uniform laws on the subject of Bankruptcies, was next.
Roger Sherman did not wish to see bankruptcies punished with death as was sometimes done in England.
Governeur Morris noted it was a delicate subject, but one which he did not think would be abused.
Congressional power to establish uniform bankruptcy laws passed 9-1.
Charles Pinckney moved to postpone the Committee of Eleven report of 1 Sep, in order to consider, "The members of each House shall be incapable of holding any office under the U. S. 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." Holding two offices would still be mutually exclusive; but leaving elective office for appointive office should be an option. He brought up an interesting Roman era quote.
Mr. Pinckneys motion failed 8-2.
Rufus King motioned and Hugh Williamson seconded to amend so as to read, "The members of each House shall be ineligible to any civil office under the authority of the U. S. created during the time for which they shall respectively be elected, and no person holding an office under the U. S. shall be a member of either House during his continuance in office." This would prevent members of the first Congress from accepting appointive office.
Roger Sherman saw corruption written all over any option for members of Congress to obtain appointive office.
Governeur Morris thought if the Executive could not appoint members of Congress, he would just appoint their friends and relatives. (In a strange twist, he thought it better to appoint legislative members rather than their cronies.)
Elbridge Gerry further illustrated the corruptive effect of appointing Congressional members to appointive office. Fools from Congress would take the place of competent civil officers.
Nathaniel Gorham favored the amendment. The example of State governments proved his point.
Gov. Edmund Randolph vehemently opposed the possibility of appointed offices for Congressmen.
Abraham Baldwin disagreed with Mr. Gorham. Any comparison to the situation in State government was not applicable; there were far fewer qualified State men to fill appointive offices compared to national offices.
George Mason maintained the exclusion would prevent corruption.
James Wilson opposed the exclusion.
Charles Pinckney said the best men, whether subject to exclusion or not, will not be available to fill the judiciary.
Mr. Kings motion to prevent the first Congressmen from accepting appointive office, failed 5-5.
Hugh Williamson offered an amendment that passed.
The section thus read, "The members of each House shall be ineligible to any Civil office under the authority of the U. 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 U. S. shall be a member of either House during his continuance in office," which passed.
Most of the clauses in the Constitution were written the way they were to correct a problem or defect in government we experienced as colonials under the British Monarchy or as independent, sovereign states under the Articles of Confederation.
Today, the corrupting influence of Executive appointments was debated. In the recent past, enormously powerful Royal Governors, appointed by the King, regularly compromised the popular branch of colonial governments, the Assembly. Not only could Governors veto colonial bills, and even dissolve Assemblies, they offered judgeships, government contracts and other forms of patronage to Assembly members. An Assemblyman who owed his concurrent job as a customs agent would be a reliable point of support for the Governors policies.
So, a lesson our Founders took from colonial experience was to rein in Executive power. The State Constitutions of 1776-1777 empowered legislatures over their Judicial and Executive branches. As long as the people dominated, via their reps, liberty was assured, or so they thought. Legislatures made a preponderance of appointments, including judicial ones. In most States, they appointed Governors. The downside was erratic government subject to passions of the day. Paper money, stay and tender laws, and laws which contradicted the Articles of Confederation were problematic.
Faced with recent experience of executives too strong and subsequently too weak, our Framers sought a solution, and in the process gave us distinct separation of powers. Legislators were prohibited from simultaneous service in the Executive branch and were constrained from creating such offices for their enrichment after elective service.
The common error in planning any military strategy is the seeming near impossibility of calculating the people problem.
The same seems true of the Con-Con ? How can I aptly say what others will do when I so often on a whim do opposite what reason says I ought.Governments after all consists of men as fallible as I. Better to let them make their errors then respond that to speculate as to what they will do.
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