joint weight of the two departments was necessary to balance the single weight of the legislature. To the first objection stated by the other gentleman, it might be answered that, supposing the prepossession to mix itself with the exposition, the evil would be overbalanced by the advantages promised by the expedient; to the second objection, that such a rule of voting might be provided, in the detail, as would guard against it.
Mr. RUTLEDGE thought the judges, of all men, the most unfit to be concerned in the revisionary council. The judges ought never to give their opinion on a law, till it comes before them. He thought it equally unnecessary. The executive could advise with the officers of state, as of war, finance, &c., and avail himself of their information and opinions.
On the question on Mr. Wilson's motion for joining the judiciary in the revision of laws, it passed in the negative.
Connecticut, Maryland, Virginia, ay, 3; Massachusetts, Delaware, North Carolina, South Carolina, no, 4; Pennsylvania, Georgia, divided; New Jersey, not present.182
The tenth resolution, giving the executive a qualified veto, requiring two thirds of each branch of the legislature to overrule it, was then agreed to, nem. con.
The motion made by Mr. Madison, on the 18th of July, and then postponed, "that the judges should be nominated by the executive, and such nominations become appointments, unless disagreed to by two thirds of the second branch of the legislature," was now resumed.183
Mr. MADISON stated, as his reasons for the motion—first, that it secured the responsibility of the executive, who would in general be more capable and likely to select fit characters than the legislature, or even the second branch of it, who might hide their selfish motives under the number concerned in the appointment; secondly, that, in case of any flagrant partiality or error in the nomination, it might be fairly presumed that two thirds of the second branch would join in putting a negative on it; thirdly, that, as the second branch was very differently constituted, when the appointment of the judges was formerly referred to it, and was now to be composed of equal votes from all the states, the principle of compromise which had prevailed m other instances required, in this, that there should be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The executive magistrate would be considered as a national officer, acting for and equally sympathizing with every part of the United States. If the second branch alone should have this power, the judges might be appointed by a minority of the people, though by a majority of the states, which could not be justified on any principle, as their proceedings were to relate to the people rather than to the states; and as it would, moreover, throw the appointments entirely into the hands of the Northern States, a perpetual ground of jealousy and discontent would be furnished to the Southern States.
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