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therefore, Morris opposed making the members of the legislature ineligible to other offices. He wished to conserve as much public experience as possible. Believing that the Constitution should lay as few temptations as possible in the way of those in power, Sherman remarked that men of abilities would increase in number as the country grew more populous and the means of education more diffuse; therefore the people were not likely to lack capable public servants. Pinckney cited the practice in South Carolina of allowing judges to become members of the legislature, and expressed his belief that if the State constitutions were to be revised, restrictions of the sort under consideration, on the incompatability of offices, would be diminished rather than multiplied, and in this belief he anticipated the opinions of posterity.

Thus the issue involved in the provision was the exclusion of capable men from public service by reason of ineligibility prescribed in the Constitution, or the danger of a multiplication of offices and the appointment to them of those who had created the offices. It was the principle of rotation of which Jefferson made so much, in his theory of government, as against the principle of re-eligibility and a long term, characteristic of the plan which men like Hamilton, Gouverneur Morris and the Federalists generally, favored. The real point involved was one of limiting, not so much the powers of the legislature, as the capacity to fill public offices. Democracy in these early days was distrustful; and its distrust, as expressed in written constitutions, found expression in clauses declaring a particular class of men ineligible to office under certain conditions. Morris and Broom suggested that military and naval offices should be exempt from the effect of the ineligibility; though if a member of either House should accept one, he should vacate his seat. The appoint

PAYMENT OF CONGRESS.

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ment of Washington as commander-in-chief, while yet a delegate to the Continental Congress, was a case immediately in point, and, as Randolph expressed it, the only one in which an exception could be made.

The Committee had reported a clause, providing for the payment of members of Congress by the States. This conclusion was the more surprising because the objections to such a provision had been strongly put in the Convention, and it may be said were quite conclusive. Ellsworth now confessed that, after further reflection on the subject, he was convinced that this mode of payment would produce too much dependence on the States, and, therefore, he proposed that it should be struck out for payment out of the national treasury at a fixed daily allowance. If Congress was paid by the States the more distant ones from the capitol would have the greater burden, and Morris for this and other reasons would have the amount fixed at the discretion of the national legislature. Again, as Langdon remarked, if the States paid Congress, the sums would vary, and Madison pointed out that, with the House appointed biennially and the Senate dependent upon legislatures chosen annually, the general government would stand a very poor chance of stability, the want of which was the principal evil in the State governments.

The Senate had been formed on the model of that of Maryland. Its revisionary check followed the precedent of the Senate of New York.2 The effect of a union of the long term of one and the power of the other could not be foreseen, but he did not wish its efficiency diminished by dependence upon the States. He was for adopting some permanent standard, such as wheat.3

1 Maryland constitution, 1776, Articles XIV and XVIII.

2 Constitution, 1777, Articles III and XXXII.

3 Jefferson had suggested this standard in his draft of a fundamental constitution for Virginia, which provided that members

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PAYMENT OF CONGRESS.

Dickinson would allow the national legislature to fix the amount of its compensation at a regular period, say, every twelve years. As the Senate was to represent the States, Martin believed, that its members should be paid by them, but Carroll, his colleague, understood that the Senate was to represent and manage the affairs of the whole country and not be merely the advocate of State interests; therefore, it ought not to be dependent on the States, which idea prevailed, the Committee's provision was rejected, and it was decided that the members of the national legislature should be paid out of the national treasury.1 An effort was made to fix the compensation under the Constitution, and particularly the pay of Senators, because they would be detained longer from home than the Representatives would be, but this suggestion raised so many difficulties in practical administration that it was agreed that the compensation should be ascertained by law.

Morris expressed regret that something like the proposed senatorial check could not be adopted for revenue bills, in order to prevent the abuse of public credit. The subject was of too great importance to be left without some check on the unstability of Congress. It might be well to provide that two-thirds of each House could repeal laws passed over the President's veto. As he was to be elected by Congress, the legislature would contrive to influence

of assembly should receive daily wages in gold or silver equal to the value of two bushels of wheat, which should be estimated at $1.00 a bushel until the year 1790, and should be valued anew every ten years thereafter. Notes on Virginia, Query, No. 23, Appendix, No. II, Edition of 1788, 231.

1 New Hampshire, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina and Georgia, aye; Massachusetts and South Carolina, no.

2 August 15.

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the President. The abuse of bills of credit, to which the country had been so long subjected, illustrated the distressing effects of the perversity of legislative assemblies. If the national legislature was formed and war should break out, doubtless, unless guarded against, the ruinous expedient would be again resorted to. If, say, three-fourths were necessary to make the repeal, the remedy, though not complete, would prevent the hasty passage of laws and also the frequency of such repeals as had already destroyed public confidence, and which were among the greatest calamities from which the country was suffering.

Wilson and Madison suggested that a stable check might be established, if the judges of the Supreme Court were instructed to revise the laws before they were presented to the President; but this raised the old difficulty of the confusion of civil functions. Morris, who was opposed to the election of the President by Congress, preferred to give the executive an absolute negative, though a control of the legislature might have its influences, and by control, he meant what we understand in our day as the limitation of its powers, commonly expressed in clauses forbidding special legislation,—yet, there was even greater danger on the other side. Encroachments of the popular branch of the government should be guarded against, and Morris cited the reports of the Council of Censors in Pennsylvania as illustrating the many invasions by the legislative department into the domain of the executive, although in that State the executive was a committee of twenty-four persons, whose chairman was the President of the commonwealth.1 Made within the short term of seven years, in a State in which a strong party was op

1 At this time, Doctor Franklin.

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posed to the Constitution,' and was watching every action to turn public sentiment against it, these reports he considered sufficient testimony to the danger from the legislature in any State, or in the United States, unless it was expressly guarded against, in the constitution.2

The substance of these reports was that adequate checks and balances were lacking in the constitution of Pennsylvania. The tendency of legislative authority was ever to usurp the powers of the executive. The Committee had reported that two-thirds of either House might overrule the veto. But as Carroll remarked, when this was agreed to, the quorum of the two branches had not been fixed. It had since been decided that a majority should constitute a quorum. This signified that seventeen members of the House and eight of the Senate might carry a measure through. Surely there should be greater impediments to improper laws. Yet, the point at issue could not be decided until the executive department had been organized.

It seemed as if everything hung on the executive. Gorham, who, with some others, was getting impatient at postponement, and wished all matters settled as they occurred in the plan which the committee had proposed, thought that a majority was a sufficient quorum and moreover, it accorded with the principle fixed in the State constitutions. But the question involved was the relative powers of the

1 The constitution of Pennsylvania, of 1776, which continued in force till 1789-90, was unpopular chiefly because of its confusion of the functions of government. See the reports of the Council of Censors, cited in the Proceedings of the Constitutional Convention of 1776 and 1789-90, Harrisburg, 1824.

2 See note on the Council of Censors, page 343, ante; comparison may also be made with the reports of the Council of Censors of Vermont of 1820; 1821, 1827, 1841-1842; 1848-1849; 18551856; in which the principles of the separation powers and the violation of them complained of by the Pennsylvania Council of Censors in the 18th century are further exemplified.