Page:The Records of the Federal Convention of 1787 Volume 2.djvu/81

 RECORDS OF THE FEDERAL CONVENTION 7 Saturday MADISON Jly zr sary 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 agst. popular measures of the Legislature. Besides in what mode & proportion are they to vote in the Council of Revision ? (Mr.) M(adison) could not discover in the proposed asso- ciation of the Judges with the Executive in the Revlslonary check on the Legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. On the contrary he thought it an auxiliary precau- tion in favor of the maxi.rn. If a Constitutional discrimination of the departments on paper were a sufficient security to each agst. encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a dis- trust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting our- selves with laying down the Theory in the Constitution that each department ought to be separate & distinct, it was pro- posed to add a defensive power to each which should main- tain the Theory in practice. In so doing we did not blend the departments together. We erected effectual barriers for keep- ing them separate. The most regular example of this theory was in the British Constitution. Yet it was not only the prac- tice there to admit the Judges to a seat in the legislature, and in the Executive Councils, and to 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 agst. a union of the Judiciary & 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 Con- stitution, it was equally so to admit the Executive to any par- ticipation in the making of laws; and the revisionary plan ought to be discarded altogether.

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