The first order of business this morning was to vote on the postponed motion to compensate members of the first branch of the national government “out of the Treasury of the United States.” Yesterday’s debate concerning the motion must have been sufficient for the delegates to make their decision, because the vote this morning was taken without further discussion. The motion failed 5 – 5 – 1, leaving the issue of the method of compensation unresolved.
For the remainder of the day, the Convention focused on only one issue, a provision in the third resolution of the report before them. It provides that members of the first branch of the national legislature would be “ineligible to any office established by a particular State, or under the authority of the United States (except those peculiarly belonging to the functions of the first branch), during the term of service, and under the national government for the space of one year after its expiration.”
Immediately, Gen. Pinckney moved that, “that part of the clause which disqualifies a person from holding office in the state [while a member of the national legislature] be expunged, because the first and best characters in a State may thereby be deprived of a seat in the national government.” He did not comment that many of the delegates themselves are currently holding both State and national offices.
James Wilson considered Gen. Pinckney’s motion as another way “to give a bias in favor of State governments.” Roger Sherman seconded the motion, grumbling that “by the conduct of some gentlemen, we are erecting a kingdom against itself.” The motion passed 8 – 3, Massachusetts, Pennsylvania, and Delaware in the negative. Members of the first branch of government will be permitted to serve in State government positions. At least for now.
The ability of members of the first branch of the legislature to serve simultaneously in positions under the national government was more controversial. John Rutledge is “for preserving the legislature as pure as possible, by shutting the door against appointments of its own members to offices, which was one source of its corruption.”
Virginia’s George Mason stoutly defended Rutledge, pointing to the “shameful partiality to its own members” by the legislature in his own State and “the abuses and corruption in the British Parliament connected with the appointment of its members.” Moreover, he could not imagine there are not enough citizens “ready, without the inducement of eligibility to offices, to undertake legislative service.” He hoped “the honors of the State will induce those who aspire to them, to enter that service as the field in which they can best display and improve their talents and lay the train for their subsequent advancement.”
Sherman and Elbridge Gerry took a similar view. Sherman “hoped there would be sufficient inducements to public service without resorting to the prospect of desirable offices.” Gerry agreed, but observed that the problem is not limited to elected officials seeking such favors for themselves, but their seeking them for their friends and relatives as well. If restrictions are placed on the members of the legislature, he said, “they still might intrigue and cabal for their sons, brothers, etc.”
The discussion has centered around a proposal by James Madison that he hopes will be “a middle ground between and eligibility in all cases, and an absolute disqualification.” He admitted the probability of abuse if members of the legislature could be offered positions during or immediately after their service, “particularly within the gift of the legislature.” He has personally “witnessed the partiality of such bodies to their own members, as had been remarked about the Virginia Assembly by Mr. Mason.” But he urged Mason and the others “to vouch another fact less notorious in Virginia, that the backwardness of the best citizens to engage in legislative service gave but too great success to unfit characters.” Our object should be to “fill all offices with the fittest characters and to draw the wisest and most worthy citizens into the legislative service.”
Madison continued, observing the tendency for those seeking government positions to “hover round the seat of government or be found among the residents there” and court the favor of those making the appointments. This would be worse in the national government than in the States because it would disadvantage States far from the seat of the national government. An absolute disqualification of members from holding other positions will deter the most capable citizens from serving. Experience, he said, has proven this to be so. “The legislature of Virginia would probably have been without many of its best members, if in that situation, they had been ineligible to Congress and other honorable offices of the State.”
Finally, Madison put the matter more bluntly. “Can you always rely on the patriotism of its members?” he charged. “If this be the only inducement, you will find a great indifferency in filling your legislative body. If we expect to call forth useful characters, we must hold out allurements, nor can any great inconveniency arise from such inducements.”
The argument went back and forth. Nearly at its end, Gerry spoke a second time. “At the beginning of the war we possessed more than Roman virtue. It appears to me it is now the reverse. We have more land and stock-jobbers than any place on earth…We have constantly endeavored to keep distinct the three great branches of government, but if we agree to this motion, it must be destroyed by admitting the legislators to share in the executive, or to be too much influenced by the executive, in looking up to him for offices.”
Madison’s motion to ease restrictions on the ability of members of the first branch to hold additional office failed 2 – 8 – 1, Connecticut and New Jersey, “aye,” Maryland divided.