Journal of the Federal Convention June 5th 1787

How Many Courts? National Legislature to Appoint Judges? Judicial Salaries. Admission of new States. Continuation of Articles until Constitutional Government. Amending the Constitution. Oaths to support Union. Submission of Constitution to Congress. Electors to first branch of Legislature. Inferior Tribunals

The words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of Resoln. Th [FN2] The Clause-"that the National Judiciary be chose by the National Legislature," being under consideration.

Mr. WILSON opposed the appointmt. of Judges by the National Legisl: Experience shewed the impropriety of such appointmts. by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the executive was that officers might be appointed by a single, responsible person.

Mr. RUTLIDGE was by no means disposed to grant so great a power to any single person. The people will think we are leaning too much towards Monarchy. He was against establishing any national tribunal except a single supreme one. The State tribunals are most proper to decide in all cases in the first instance.

Docr. FRANKLIN observed that two modes of chusing the Judges had been mentioned, to wit, by the Legislature and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practiced in Scotland. He then in a brief and entertaining manner related a Scotch mode, in which the nomination proceeded from the Lawyers, who always selected the ablest of the profession in order to get rid of them, and share their practices among themselves. It was in the interest of the electors to make the best choice, which should always be made the case if possible.

Mr. MADISON disliked the election of the Judges by the Legislature or any numerous body. Besides, the danger of intrigue and partiality, many of the members were not judges of the requisite qualifications. The Legislative talents which were very different from those of a Judge, commonly recommended men to the favor of Legislative Assemblies. It was known too that the accidental circumstances of presence and absence, of being a member or not a member, had a very undue influence on the appointment. On the other hand he was not satisfied with referring the appointment to the Executive. He rather inclined to give it to the Senatorial branch, as numerous eno' to be confided in-as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments. He hinted this only and moved that the appointment by the Legislature might be struck out, & a blank left to be hereafter filled on maturer reflection.

On the question for striking out. Massts. ay. Cont. no. N.Y. ay. N.J. ay. Pena.ay. Del. Ay. Md. ay. N.C. ay. S.C.no. Geo.ay. [FN3]

Mr. WILSON gave notice that he should at a future day move for a reconsideration of the clause which respects "inferior tribunals."

Mr. PINKNEY gave notice that when the clause respecting the appointment of the Judiciary should again come before the Committee he should move to restore the "appointment by the national Legislature."

The following clauses of Resol: 9. [FN4] were agreed to viz "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution."

Resolution 10 [FN6] was agreed to-viz-that provision ought to be made for the admission of States lawfully arising within the limits of the U. States, whether from a voluntary junction of Government & territory, or otherwise, with the consent of a number of voices in the National Legislature less than the whole.

The 11. propos: [FN7] "for guarantying to States Republican Govt. & territory &c., being read, Mr. PATTERSON wished the point of representation could be decided before this clause should be considered, and moved to postpone it: which was not opposed, and agreed to: Connecticut & S. Carolina only voting agst. it. Propos. 12 [FN8] "for continuing Congs. till a given day and for fulfilling their engagements," produced no debate.

On the question, Mass. ay. Cont. no. N. Y. ay. N. J. [FN9] ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. G. ay.

Propos: 13. [FN10] "that provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the Natl. Legislature," being taken up,

Mr. GERRY favored it. The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Govt. Nothing had yet happened in the States where this provision existed to prove its impropriety.

The proposition was postponed for further consideration: the votes being, Mas: Con. N. Y. Pa. Del. Ma. N. C.-ay Virga. S. C. Geo: no

Propos. 14. [FN11] "requiring oath from the State officers to support National Govt." was postponed after a short uninteresting conversation: the votes, Con. N. Jersey. Md. Virga.: S. C. Geo. ay N. Y. Pa. Del. N. C. - no Massachusetts - divided.

Propos. 15 [FN12] for "recommending Conventions under appointment of the people to ratify the new Constitution" &c. being taken up.

Mr. SHERMAN thought such a popular ratification unnecessary: the articles of Confederation providing for changes and alterations with the assent of Congs. and ratification of State Legislatures.

Mr. MADISON thought this provision essential. The articles of Confedn. themselves were defective in this respect, resting in many of the States on the Legislative sanction only. Hence in conflicts between acts of the States, and of Congs. especially where the former are of posterior date, and the decision is to be made by State tribunals, an uncertainty must necessarily prevail, or rather perhaps a certain decision in favor of the State authority. He suggested also that as far as the articles of Union were to be considered as a Treaty only of a particular sort, among the Governments of Independent States, the doctrine might be set up that a breach of any one article, by any of the parties, absolved the other parties from the whole obligation. For these reasons as well as others he thought it indispensable that the new Constitution should be ratified in the most unexceptionable form, and by the supreme authority of the people themselves.

Mr. GERRY observed that in the Eastern States the Confedn. had been sanctioned by the people themselves. He seemed afraid of referring the new system to them. The people in that quarter have at this time the wildest ideas of Government in the world. They were for abolishing the Senate in Massts. and giving all the other powers of Govt. to the other branch of the Legislature.

Mr. KING supposed that the last article of ye Confedn. rendered the legislature competent to the ratification. The people of the Southern States where the federal articles had been ratified by the Legislatures only, had since impliedly given their sanction to it. He thought notwithstanding that there might be policy in varying the mode. A Convention being a single house, the adoption may more easily be carried thro' it, than thro' the Legislatures where there are several branches. The Legislatures also being to lose power, will be most likely to raise objections. The people having already parted with the necessary powers it is immaterial to them, by which Government they are possessed, provided they be well employed.

Mr. WILSON took this occasion to lead the Committee by a train of observations to the idea of not suffering a disposition in the plurality of States to confederate anew on better principles, to be defeated by the inconsiderate or selfish opposition of a few States. He hoped the provision for ratifying would be put on such a footing as to admit of such a partial union, with a door open for the accession of the rest. [FN13]

Mr. PINKNEY hoped that in case the experiment should not unanimously take place nine States might be authorized to unite under the same Governt.

Mr. PINKNEY & Mr. RUTLIDGE moved that tomorrow be assigned to reconsider that clause of Propos. 4: [FN16] which respects the election of the first branch of the National Legislature-which passed in [FN17] affirmative: Con: N. Y. Pa. Del: d. Va.-ay-6 Mas. N. J. N. C. S. C. Geo. no. 5.

Mr. RUTLIDGE havg. obtained a rule for reconsideration of the clause for establishing inferior tribunals under the national authority, now moved that that part of the clause in propos. 9. [FN18] should be expunged: arguing that the State Tribunals might and ought to be left in all cases to decide in the first instance the right of appeal to the supreme national tribunal being sufficient to secure the national rights & uniformity of Judgmts.: that it was making an unnecessary encroachment on the jurisdiction of the States and creating unnecessary obstacles to their adoption of the new system.

Mr. MADISON observed that unless inferior tribunals were dispersed throughout the Republic with final jurisdiction in many cases, appeals would be multiplied to a most oppressive degree; that besides, an appeal would not in many cases be a remedy. What was to be done after improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury? To remand the cause for a new trial would answer no purpose. To order a new trial at the Supreme bar would oblige the parties to bring up their witnesses, tho' ever so distant from the seat of the Court. An effective Judiciary establishment commensurate to the legislative authority, was essential. A Government without a proper Executive & Judiciary would be the mere trunk of a body, without arms or legs to act or move.

Mr. WILSON opposed the motion on like grounds. he said the admiralty jurisdiction ought to be given wholly to the national Government, as it related to cases not within the jurisdiction of particular states, & to a scene in which controversies with foreigners would be most likely to happen.

Mr. SHERMAN was in favor of the motion. He dwelt chiefly on the supposed expensiveness of having a new set of Courts, when the existing State Courts would answer the same purpose. Mr. DICKINSON contended strongly that if there was to be a National Legislature, there ought to be a national Judiciary, and that the former ought to have authority to institute the latter. On the question for Mr. Rutlidge's motion to strike out "inferior tribunals" [FN19]

Massts. divided. Cont. ay. N. Y. divd. N. J. ay. Pa. no. Del. no. Md. no. Va. no. N. C. ay. S. C. ay. Geo. ay. [FN20]

Mr. WILSON & Mr. MADISON then moved, in pursuance of the idea expressed above by Mr. Dickinson, to add to Resol: 9. [FN21] the words following "that the National Legislature be empowered to institute inferior tribunals." They observed that there was a distinction between establishing such tribunals absolutely, and giving a discretion to the Legislature to establish or not establish them. They repeated the necessity of some such provision.

Mr. BUTLER. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon who gave the Athenians not the best Govt. he could devise; but the best they wd. receive. Mr. KING remarked as to the comparative expence that the establishment of inferior tribunals wd. cost infinitely less than the appeals that would be prevented by them.

On this question as moved by Mr. W. & Mr. M. Mass. ay. Ct. no. N. Y. divd. N. J. [FN22] ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay.

FN2 The phrase "the ninth Resolution" is used in the transcript in place of "Resoln. 9th."

FN3 In the transcript the vote reads: "Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, no, Georgia, aye-9; Connecticut, South Carolina,-2."

FN4 The transcript uses the phrase "the ninth Resolution" in place of "Resol: 9," and italicizes the resolution.

FN7 In place of the words "The 11. propos:" the transcript reads: "The eleventh Resolution."

FN10 The transcript changes "Propos: 13" to read as follows: "The thirteenth Resolution, to the effect."

FN13 The note in brackets to be transferred to bottom margin. [FN14] [This hint was probably meant in terrorem to the smaller States of N. Jersey & Delaware. Nothing was said in reply to it.]

FN19 The phrase "it passed in the affirmative" is here inserted in the transcript.

FN20 In the transcript the vote reads: "Connecticut, New York, New Jersey, North Carolina, South Carolina, Georgia, aye-5; Pennsylvania, Delaware, Maryland, Virginia, no-4; Massachusetts, divided." New York which was "divided" was erroneously placed among the "ayes" in copying, although the number was correctly given as "5."

(My observations appear in parentheses.)

(The Resolutions cited today were those of the Randolph/Virginia Plan submitted by Governor Edmund Randolph of Virginia on May 29th. See http://www.freerepublic.com/focus/f-bloggers/2726699/posts)

Governor William Livingston (NJ) took his seat.

(William Livingston: Born 1732 in frontier Albany. Educated at home and among the Mohawks with whom he lived for one year, and at Yale. Learned law with James Alexander in NYC. Admitted to Bar in 1748. Successful lawyer, hell raising politician, eloquent pamphleteer, he was something of a democratic aristocrat. Retired to a farm in NJ in 1772. Delegate to First and Second Continental Congresses, commanded NJ Militia with mixed success, and returned to politics. Served as NJ Governor since 1776. He arrived with a lot of prestige. For whatever reason, he was noticeably quiet during the debates. However, he served on various committees where James Madison said later, “it may be presumed he had an agency and a due influence.” Governor Livingston would miss the Convention 3-19 July to attend to Executive duties, and an odd day here and there, but would otherwise attend.)

Committee of the Whole.

Resolution 9: “Resolved that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.”

The Clause, "that the National Judiciary be chosen by the National Legislature," was under consideration.

James Wilson (PA) distrusted a large body. Expect corruption. Preferred the executive to appoint.

John Rutlidge (SC) didn’t believe the people would take well to a government leaning toward Monarchy, which is the trend when the executive has too much power.

Ben Franklin brought up the Scottish selection method. (Lawyer joke)

James Madison (VA) considered appointment by the Senate, being a smaller, more deliberative and stable body of men.

On Mr. Madison’s motion, appointment by the Legislature was struck out, to be left blank and reconsidered later on.

James Wilson (PA) notified the convention his intent to bring up inferior courts at a later date.

The clauses, "to hold their offices during good behaviour, and to receive punctually at stated times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution,” were agreed to.

Debate over the rest of Resolution #9, the Judiciary, was postponed.

(Lets put off debate over jurisdiction of the courts.)

(By now, a parliamentary pattern emerged. Put the question to resolutions that met with favor; postpone the difficult and contentious. This way, delegates would slowly build a framework on which to attach problematic and perhaps narrowly approved resolutions later on. Keeping the delegates in attendance was paramount. On any given day, about thirty were there, representing nine to eleven States.)

Admission of new states, Resolution #10 was approved.

Resolution #13, amendments to the Constitution without Congressional involvement, and Resolution #14, requiring an oath from state officers to the Constitution were postponed.

Resolution #15 asked for ratification of the Constitution by representatives of the people.

(The distinction between the proposed government and the Articles is striking. In less than ten years leading men not only realized that a confederacy, a treaty among sovereign states was unworkable, but they came up with a radically different plan, one based on a new foundation, the people and not the states. But, at this point in the convention, the change in mindset, from state to people sovereignty had not entirely sunk in.)

(In 1784, James Madison and Richard Henry Lee sought a new constitution for VA. The existing constitution from 1776 was passed like any other law. For the new Constitution, Madison insisted the people ratify it. They did.)

Roger Sherman (CN) saw ratification to be carried out per the Articles, approved by every state.

James Madison (VA) disagreed. In what had to be an explosive charge, Madison postulated that a treaty broken by one member, released the other signatories from further compliance. Since the states regularly breached or ignored various provisions of the Treaty known as the Articles of Confederation, there was no compelling reason to comply with Article XIII, which required approval from every state legislature to amend the Articles. In just a few words, Madison explained the legal basis for what was de facto true; the Articles were farcical and bound no party to actual performance.

Elbridge Gerry (MA) reminded delegates that the people of the Eastern states ratified the Articles. (I have gathered that what we refer today as New England, was known then as Eastern) He was apprehensive of seeking their approval, given some of their wild ideas.

Rufus King (MA) thought the state legislatures would be most likely to raise objections since they stood to lose power. I think he was ambivalent as to ratification by the people, for they were indifferent as to which government exercised necessary powers.

James Wilson (PA) did not favor the idea of one or a few states defeating needed improvements.

Charles Pinckney (SC) suggested the approval of nine states adequate to implement the plan.

Resolution #15, ratification by representatives of the people, was postponed.

Charles Pinckney (SC) and John Rutlidge (SC) moved to reconsider Resolution 4 tomorrow, the election of members to the first branch. It passed 6-4.

John Rutlidge (SC) revisited Resolution #9, regarding the Judiciary. He wished to remove “inferior tribunals,” and have only one federal court, the Supreme Court. State courts should have initial jurisdiction and decide right to appeal. Inferior federal courts would infringe on state jurisdiction.

James Madison (VA) viewed as impractical the long travel required for litigants to appear before a single court. He also compared a government without adequate executive and judicial means as to a body without arms or legs.

(The system was viewed as vertical, with state courts at the bottom, and a supreme court at the top. This was logical, as the delegates had not yet hashed out the details of federal jurisdiction. Once that was done, it would be apparent that a parallel federal system would be necessary to deal with federal laws)

Roger Sherman (CN) saw no need for inferior courts, besides they would be expensive.

John Dickinson (DE) argued that if there was to be a National Legislature, there would be need for a National Judiciary.

The motion to strike “inferior courts” passed 5-4-2.

James Wilson (PA) and James Madison (VA) sought to give the legislature the option, rather than the requirement to institute inferior courts. (Never give up.)

Pierce Butler (SC) didn’t think the people would stand for inferior courts. He predicted the states would revolt at such encroachments. Notice the feistiness of the delegates from SC. I suspect they were concerned over the possible Constitutional impact on their peculiar institution.

I got a kick out of Butler’s reference to Solon, who “gave the Athenians not the best government he could devise; but the best they would receive.”

(After reading these debates, I get especially annoyed with the Utopian Left media when they complain about the Constitution, usually over slavery. Our Framers, thank God, didn’t meet to create Heaven on earth. They met to form a government amenable to thirteen little, dissimilar, mistrusting, infighting States. This isn’t to say they were not men of ideas. They were. Just because lengthy speeches citing Coke, Locke, Montesquieu were missing, did not mean their influence, and that of over 150 years of colonial government and a revolution were not there. I am convinced they did the best that mortals could to implement American traditions and the philosophy of our Declaration into working institutions.

Rufus King (MA) wisely figured the cost to maintain inferior courts would cost less than the appeals prevented by them.

The motion of Wilson and Madison passed. The legislature could, but not be required to form inferior courts. This would appear in Article I Section 8 as, “To constitute Tribunals inferior to the supreme Court.”

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.