Page:Debates in the Several State Conventions, v5.djvu/373

1787.] have a double negative. It is necessary that the supreme judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating against popular measures of the legislature. Besides, in what mode and proportion are they to vote in the council of revision?

Mr. MADISON could not discover in the proposed association of the judges with the executive, in the revisionary check on the legislature, any violation of the maxim which requires the great departments of power to be kept separate and distinct. On the contrary, he thought it an auxiliary precaution in favor of the maxim. If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security, and that it is necessary to introduce such a balance of powers and interests as will guaranty the provisions on paper. Instead, therefore, of contenting ourselves with laying down the theory, in the Constitution, that each department ought to be separate and distinct, it was proposed to add a defensive power to each, which should maintain the theory in practice. In so doing, we did not blend the departments together. We erected effectual barriers for keeping them separate. The most regular example of this theory was in the British constitution. Yet it was not only the practice there to admit the judges to a seat in the legislature, and in the executive councils, and submit to their previous examination all laws of a certain description, but it was a part of their constitution that the executive might negative any law whatever; a part of their constitution, which had been universally regarded as calculated for the preservation of the whole. The objection against a union of the judiciary and executive branches, in the revision of the laws, had either no foundation, or was not carried far enough. If such a union was an improper mixture of powers, or such a judiciary check on the laws was inconsistent with the theory of a free constitution, it was equally so to admit the executive to any participation in the making of laws; and the revisionary plan ought to be discarded altogether.

Col. MASON observed, that the defence of the executive was not the sole object of the revisionary power. He expected even greater advantages from it. Notwithstanding the precautions taken in the constitution of the legislature, it would still so much resemble that of the individual states, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary. It would have the effect, not only of hindering the final passage of such laws, but would discourage demagogues from attempting to get them passed. It has been said, (by Mr. L. Martin,) that if the judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of judges they would have one negative. He would reply, that in this capacity they could impede in one case only the operation of laws. They could declare an unconstitutional law void. But with regard to every