Page:The Records of the Federal Convention of 1787 Volume 2.djvu/38

From Wikisource
Jump to: navigation, search
This page needs to be proofread.


34 P. ECOlDS OF THE FEDERAL CONVENTION Ty MADISON If he behaves well he will be continued; if otherwise, dis- placed on a succeeding election. Mr. Madison. * If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislure, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well the maker of the laws. In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an analogy between the Executive & Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded & applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circumstances--i. the collective interest & security were much more in the power be- longing to the Executive than to the Judiciary department. 2. in the administration of the former much greater latitude is left to opinion and discretion than in the administration of the latter. But if the 2d. consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Execut: than the Judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a Union between the Executive & Legisl: powers, than between the Judiciary & Legislative �(The view here taken of the subject was meant to aid in parrying the animad- versions likely to fall on the motion of Dr. McClurg, for whom J. M. had a particular regard? The Doer. though possessing talents of the highest order, was modest & unaccustomed to exert them in public debate.) aa Crossed out "and whose appointment to the Convention he had actively pro- moted."