294 Efforts for a Council. [1737 to be controlled as well as supported. The association of judges with it in the power over legislation would both double the advantage and diminish the danger. This would also the better enable the judiciary to defend that department against encroachment by the legislature. There were two objections : the first, that the judges ought not to be subject to the bias which their share in making the laws might give them when they came to expound them ; the second, that the judiciary department ought to be separate and distinct from the other departments. The weight of the first objection was less than it seemed to be ; only a small part of the laws coming before a judge would be laws about which he had been consulted, and of these laws only a few would be so am- biguous as to leave room for his prepossessions ; and during the life of a judge few cases of this kind of ambiguity would probably arise. The second objection had no weight, or it applied with equal force to the executive. There would be no improper mixture of the depart- ments. On a vote, only three States were in favour of the amendment. Later, in Convention, a determined effort was made, upon a motion by Wilson, to overturn the decision thus reached in committee. The arguments now were somewhat different, more insistent, and more definite than before. Wilson urged that the judges ought to be able to remonstrate against encroachment upon the people as well as upon themselves. It was not enough that they would have an opportunity, as expounders of the law, to defend constitutional rights; laws might be unjust, unwise, and dangerous, and yet not unconstitutional. Let the judges share in the revisionary power, and they could then counteract the attempt to enact such laws. Ellsworth supported the motion. It would strengthen the executive especially in dealing with questions of the law of nations. In addition to what he had said in committee, Madison now urged that the plan would be useful to the legislature, by helping to preserve con- sistency, conciseness, perspicuity, and technical propriety in the laws, things much needed and much wanting. It would not give too much strength either to the executive or to the judiciary; both of those branches would be apt to be overmatched by the legislature, even with such co-operation. Experience had shown, in all the States, that the legislature was a vortex into which all power was apt to be drawn; that was the real source of danger for America. Gerry opposed the plan as mixing up the branches of government ; it was making statesmen of the judges, and setting them up, instead of the legislature, as guardians of the people; it was making the expounders of the law the legislators. Gouverneur Morris thought that the executive, with a short term, and liable to impeachment in office, would not be a very strong check upon the legislature. To the objection that those who were to expound
