Skip to comments.Journal of the Federal Convention July 18th 1787
Posted on 07/18/2011 2:46:41 AM PDT by Jacquerie
Judiciary. Advise and Consent. Compensation of Judges. Inferior Courts. Jurisdiction. Continuation of Government. Republican Government Guarantee. Rebellions.
On motion of Mr. L. Martin to fix tomorrow for reconsidering the vote concerning "eligibility of Exective. [FN1] a 2d. time" it passed in the affirmative.
Mas. ay. Cont. ay. N. J. absent. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. absent. [FN2]
The residue of Resol. 9 [FN3] concerning the Executive was postpd. till tomorrow.
Resol. 10. [FN4] that Executive shl. have a right to negative legislative acts not afterwards passed by 2/3 of each branch. [FN5] Agreed to nem. con.
Resol. 11 [FN6] "that a Natl. Judiciary [FN7] be estabd. to consist of one supreme tribunal." agd. to nem. con. [FN8]"The Judges of which to be appointd. by the 2d. branch of the Natl. Legislature."
Mr. GHORUM, Wd.. prefer an appointment by the 2d. branch to an appointmt. by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve. with the advice & consent of the 2d. branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, & was found to answer perfectly well.
Mr. WILSON, still wd.. [FN9] prefer an appointmt. by the Executive; but if that could not be attained, wd.. prefer in the next place, the mode suggested by Mr. Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." Mr. Govr. MORRIS 2ded. the motion.
Mr. L. MARTIN was strenuous for an appt. by the 2d. branch. Being taken from all the States it wd.. be best informed of characters & most capable of making a fit choice.
Mr. SHERMAN concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2d. branch, than by the Executive.
Mr. MASON. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides agst. referring the appointment to the Executive. He mentioned as one, that as the Seat of Govt. must be in some one State, and [FN10] the Executive would remain in office for a considerable time, for 4, 5, or 6 years at least, he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.
Mr. GHORUM. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of Govt. where they reside, as the Executive. If they can not get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibility, and give full play to intrigue & cabal. Rh. Island is a full illustration of the insensibility to character, produced by a participation of numbers, in dishonorable measures, and of the length to which a public body may carry wickedness & cabal.
Mr. Govr. MORRIS supposed it would be improper for an impeachmt. of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they wd.. be much about the Seat of Govt. they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments agst. the motion before the House.
Mr. MADISON, suggested that the Judges might be appointed by the Executive with the concurrence of 1/3 at least, of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.
Mr. SHERMAN, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.
Mr. RANDOLPH. It is true that when the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it. Yet he had rather leave the appointmt. there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving appts. would be more diffusive if they depended on the Senate, the members of which wd.. be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened.
Mr. BEDFORD thought there were solid reasons agst. leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.
Mr. GHORUM remarked that the Senate could have no better information than the Executive. They must like him, trust to information from the members belonging to the particular State where the Candidates resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of the Judges to the Executive, instead of the 2d. branch
Mas. ay. Cont. no. Pa. ay. Del. no. Md. no. Va. no. N. C. no. S. C. no.-Geo. absent. [FN11]
Mr. GHORUM moved "that the Judges be nominated and appointed by the Executive by & with the advice & consent of the 2d. branch & every such nomination shall be made at least days prior to such appointment." This mode he said had been ratified by the experience of 140 years in Massachussts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing.
Mr. Govr. MORRIS 2ded. & supported the motion.
Mr. SHERMAN thought it less objectionable than an absolute appointment by the Executive; but disliked it as too much fettering the Senate.
[FN12] Question on Mr. Ghorum's motion
Mas. ay. Cont. no. Pa. ay. Del. no. Md. ay. Va. ay. N. C. no. S. C. no. Geo. absent. [FN13]
Mr. MADISON moved that the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 2/3 of the 2d. branch Mr. Govr. MORRIS 2ded. the motion. By common consent the consideration of it was postponed till tomorrow. "To hold their offices during good behavior" & "to receive fixed salaries" agreed to nem: con:
"In which [salaries of Judges] no increase or diminution shall be made so as to affect the persons at the time in office." [FN14]
Mr. Govr. MORRIS moved to strike out "or increase." He thought the Legislature ought to be at liberty to increase salaries as circumstances might require, and that this would not create any improper dependence in the Judges.
Docr. FRANKLIN was in favor of the motion. Money may not only become plentier, but the business of the department may increase as the Country becomes more populous.
Mr. MADISON. The dependence will be less if the increase alone should be permitted, but it will be improper even so far to permit a dependence Whenever an increase is wished by the Judges, or may be in agitation in the legislature, an undue complaisance in the former may be felt towards the latter. If at such a crisis there should be in Court suits, to which leading members of the Legislature may be parties, the Judges will be in a situation which ought not to [FN15] suffered, if it can be prevented. The variations in the value of money, may be guarded agst. by taking for a standard wheat or some other thing of permanent value. The increase of business will be provided for by an increase of the number who are to do it. An increase of salaries may be easily so contrived as not to affect persons in office.
Mr. Govr. MORRIS. The value of money may not only alter but the State of Society may alter. In this event the same quantity of wheat, the same value would not be the same compensation. The Amount of salaries must always be regulated by the manners & the style of living in a Country. The increase of business can not, be provided for in the supreme tribunal in the way that has been mentioned. All the business of a certain description whether more or less must be done in that single tribunal. Additional labor alone in the Judges can provide for additional business. Additional compensation therefore ought not to be prohibited.
On the question for striking out "or increase"
Mas. ay. Cont. ay. Pa. ay. Del. ay. Md. ay. Va. no. N. C. no. S. C. ay. Geo. absent. [FN16]
The whole clause as amended was then agreed to nem: con:
12. Resol: [FN17] "that [FN18] Natl. Legislature be empowered to appoint inferior tribunals" [FN19]
Mr. BUTLER could see no necessity for such tribunals. The State Tribunals might do the business.
Mr. L. MARTIN concurred. They will create jealousies & oppositions in the State tribunals, with the jurisdiction of which they will interfere.
Mr. GHORUM. There are in the States already federal Courts with jurisdiction for trial of piracies &c. committed on the Seas. No complaints have been made by the States or the Courts of the States. Inferior tribunals are essential to render the authority of the Natl. Legislature effectual
Mr. RANDOLPH observed that the Courts of the States can not be trusted with the administration of the National laws. The objects of jurisdiction are such as will often place the General & local policy at variance.
Mr. Govr. MORRIS urged also the necessity of such a provision
Mr. SHERMAN was willing to give the power to the Legislature but wished them to make use of the State Tribunals whenever it could be done, with safety to the general interest.
Col. MASON thought many circumstances might arise not now to be foreseen, which might render such a power absolutely necessary.
On [FN20] question for agreeing to 12. Resol: [FN21] empowering the National Legislature to appoint "inferior tribunals." [FN22] Agd. to nem. con.
[FN23] 13. Resol: "Impeachments of national officers" were struck out" on motion for the purpose. "The jurisdiction of Natl. Judiciary." Several criticisms having been made on the definition; it was proposed by Mr. Madison so to alter [FN24] as to read thus-"that the jurisdiction shall extend to all cases arising under the Natl. laws: And to such other questions as may involve the Natl. peace & harmony," which was agreed to nem. con.
Resol. 14. [FN25] providing for the admission of new States [FN26] Agreed to nem. con.
Resol. 15. [FN27] that provision ought to be made for the continuance of Congs. &c. & for the completion of their engagements. [FN28]
Mr. Govr. MORRIS thought the assumption of their engagements might as well be omitted; and that Congs. ought not to be continued till all the States should adopt the reform; since it may become expedient to give effect to it whenever a certain number of States shall adopt it.
Mr. MADISON the clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist in the interval between the adoption of the New Govt. and the commencement of its operation, if the old Govt. should cease on the first of these events.
Mr. WILSON did not entirely approve of the manner in which the clause relating to the engagements of Congs. was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the Confederacy might be dissolved along with the Governt. under which they were contracted.
On the question on the 1st. part-relating to [FN29] continuance of Congs."
Mas. no. Cont. no. Pa no. Del. no. Md. no. Va. ay. N.C. ay. S. C. [FN30] ay. Geo. no. [FN31]
The 2d. part as to [FN29] completion of their engagements, [FN32] disagd. to. nem. con.
Resol. 16. [FN33] "That a Republican Constitution & its. existing laws ought to be guarantied to each State by the U. States." [FN34]
Mr. Govr. MORRIS-thought the Resol: very objectionable. He should be very unwilling that such laws as exist in R. Island should be guaranteid.
Mr. WILSON. The object is merely to secure the States agst. dangerous commotions, insurrections and rebellions.
Col. MASON. If the Genl. Govt. should have no right to suppress rebellions agst. particular States, it will be in a bad situation indeed. As Rebellions agst. itself originate in & agst. individual States, it must remain a passive Spectator of its own subversion.
Mr. RANDOLPH. The Resoln. has 2. objects. 1. [FN35] to secure Republican Government. 2. [FN35] to suppress domestic commotions. He urged the necessity of both these provisions.
Mr MADISON moved to substitute "that the Constitutional authority of the States shall be guarantied to them respectively agst. domestic as well as foreign violence."
Docr. Mc.CLURG seconded the motion.
Mr. HOUSTON was afraid of perpetuating the existing Constitutions of the States. That of Georgia was a very bad one, and he hoped would be revised & amended. It may also be difficult for the Genl. Govt. to decide between contending parties each of which claim the sanction of the Constitution.
Mr. L. MARTIN was for leaving the States to suppress Rebellions themselves.
Mr. GHORUM thought it strange that a Rebellion should be known to exist in the Empire, and the Genl. Govt. shd. be restrained from interposing to subdue it. At this rate an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partizans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole & the Genl. Govt. be compelled to remain an inactive witness of its own destruction. With regard to different parties in a State; as long as they confine their disputes to words, they will be harmless to the Genl. Govt. & to each other. If they appeal to the sword, it will then be necessary for the Genl. Govt., however difficult it may be to decide on the merits of their contest, to interpose & put an end to it.
Mr. CARROL. Some such provision is essential. Every State ought to wish for it. It has been doubted whether it is a casus federis at present. And no room ought to be left for such a doubt hereafter.
Mr. RANDOLPH moved to add as [FN36] amendt. to the motion; "and that no State be at liberty to form any other than a Republican Govt.
Mr. MADISON seconded the motion
Mr. RUTLIDGE thought it unnecessary to insert any guarantee. No doubt could be entertained but that Congs. had the authority if they had the means to co- operate with any State in subduing a rebellion. It was & would be involved in the nature of the thing.
Mr. WILSON moved as a better expression of the idea, "that a Republican form of Governmt. shall be guarantied to each State & that each State shall be protected agst. foreign & domestic violence.
This seeming to be well received, Mr. MADISON & Mr. RANDOLPH withdrew their propositions & on the Question for agreeing to Mr. Wilson's motion, it passed nem. con.
FN1 The word "eligibility of Executive" are changed to "the ineligibility of the Executive" in the transcript.
FN2 In the transcript the vote reads: "Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye-8; New Jersey, Georgia, absent."
FN3 The words "the ninth Resolution" are substituted in the transcript for "Resol. 9."
FN4 The words "The tenth Resolution" are substituted in the transcript for "Resol. 10."
FN5 The word "was" is here inserted in the transcript.
FN6 The words "The Eleventh Resolution" are substituted in the transcript for "Resol. 11."
FN7 The word "shall" is here inserted in the transcript.
FN8 The words "On the clause" are here inserted in the transcript.
FN9 The words "still wd.." are transposed to read "would still" in the transcript.
FN10 The word "as" is here inserted in the transcript.
FN11 In the transcript the vote reads: "Massachusetts, Pennsylvania, aye-2; Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, no- 6; Georgia, absent."
FN12 The words "On the" are here inserted in the transcript.
FN13 In the transcript the vote reads: "Massachusetts, Pennsylvania, Maryland, Virginia, aye-4; Connecticut, Delaware, North Carolina, South Carolina, no- 4; Georgia, absent."
FN14 The phrase "actually in office at the time" is substituted in the transcript for "at the time in office."
FN15 The word "be" is here inserted in the transcript.
FN16 In the transcript the vote reads: "Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, South Carolina, aye-6; Virginia, North Carolina, no-2; Georgia, absent."
FN17 The words "The twelfth Resolution" are substituted in the transcript for "12, Resol."
FN18 The word "the" is here inserted in the transcript.
FN19 The words "being taken up" are here inserted in the transcript.
FN20 The word "the" is here inserted in the transcript.
FN21 The words "the twelfth Resolution" are substituted in the transcript for "12. Resol."
FN22 The words "it was" are here inserted in the transcript.
FN23 This paragraph is changed in the transcript to read as follows: "The clause of 'Impeachments of national officers,' was struck out, on motion for the purpose. The thirteenth Resolution, 'The jurisdiction of the National Judiciary, &c.' being then taken up, several . . ."
FN24 The word "it" is here inserted in the transcript.
FN25 The words "The fourteenth Resolution" are substituted in transcript for "Resol. 14."
FN26 The word "was" is here inserted in the transcript.
FN27 The words "The fifteenth Resolution" are substituted in the transcript for "Resol. 15."
FN28 The words "being considered" are here inserted in the transcript.
FN29 The word "the" is here inserted in the transcript.
FN30 In the printed Journal, S. Carolina no.
FN31 In the transcript the vote reads: "Virginia, North Carolina, South Carolina, [FN30] aye-3; Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Georgia, no-6."
FN32 The word "was" is here inserted in the transcript.
FN33 The words "The sixteenth Resolution" are substituted in the transcript for "Resol. 16."
FN34 The words "being considered" are here added in the transcript.
FN35 The figures "1" and "2" are changed to "first" and "secondly" in the transcript.
FN36 The word "an" is here inserted in the transcript.
The rest of the Ninth Resolution was postponed to tomorrow.
Executive veto of legislation as in the 10th Resolution passed without opposition.
(#10 Resolved. That the national executive shall have a right to negative any legislative act: which shall not be afterwards passed unless by two third parts of each branch of the national Legislature.)
The first sentence of Resolution 11 passed without opposition.
(#11 Resolved. that a national Judiciary be established to consist of One Supreme Tribunal. The Judges of which to be appointed by the second Branch of the National Legislature. to hold their offices during good behaviour 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.)
The second sentence under consideration (The Judges of which to be appointed by the second Branch of the National Legislature)
Nathaniel Gorham thought the procedure in MA best, in which the executive appoints, subject to Senate confirmation.
James Wilson (PA) motioned and Governeur Morris (PA) seconded judges to be appointed by the executive.
Luther Martin (MD) strongly supported appointment by characters from the states.
Roger Sherman (CN) concurred with Mr. Martin. The judges should be from various parts of the country, which could be expected with Senatorial appointment.
George Mason (VA) drew impeachment of the executive into the judiciary discussion. If judges were to sit in judgment they should not be appointed by the executive. Since the government would reside in some state and the Executive would be there for over several years, it is too likely that judicial and other appointments would come from that state. (Mr. Mason implies need for what became District of Columbia)
Nathaniel Gorham (MA) retorted that senators would be just as susceptible to such a tendency as the Executive. He slammed the people making up the government of RI. (RI was a weird beard state in those days)
Governeur Morris (PA) agreed to the impropriety of Supreme Court judges sitting in the impeachment trial of the executive. He predicted behind the scenes shenanigans, deal cutting.
James Madison (VA) thought the executive could appoint with 1/3 concurrence of the Senate to reduce corruption.
Roger Sherman (CN) saw far less intrigue with Senatorial appointments.
Governor Edmund Randolph noted that Judicial appointment was initially for a Senate proportionally represented. Still, he would leave appointment to the Senate. He agreed the Senate would select judges from around the country.
Gunning Bedford (DE) (Havent heard much from him lately) determined solid reasons for leaving appointment to the Senate. The Executive could not be punished for mistakes. (I assume he means mistakes made in poor judicial appointments ?)
Nathaniel Gorham (MA) said the Senate could be no better informed than the Executive. A single man would be more answerable for his selection.
On the question of Judges to be appointed by the Executive instead of the Senate, it was defeated 6-2.
Nathaniel Gorham (MA) moved, "that the Judges be nominated and appointed by the Executive by & with the advice & consent of the 2d. branch & every such nomination shall be made at least __ days prior to such appointment." It worked for over 140 years in MA. (A reminder of our long tradition of (mostly) self government by 1787)
Governeur Morris (PA) seconded.
Roger Sherman (CN) found it less objectionable.
Mr. Gorhams motion did not pass, 4-4.
James Madison (VA) made a motion that was postponed to tomorrow which provided for Executive appointment unless shot down by 2/3 of the Senate.
To hold their offices during good behavior" & "to receive fixed salaries" was agreed to without opposition.
"In which [salaries of Judges] no increase or diminution shall be made so as to affect the persons at the time in office," was taken up next.
Governeur Morris (PA) would strike or increase. It should be up to Congress to increase salary.
Dr. Benjamin Franklin (PA) agreed with Mr. Morris. Leave it to Congress.
James Madison (VA) spoke of Congressional/Judicial cabal over salaries and situations where Congressmen could be parties to a suit before the court. Due to varying values of money, he thought perhaps a standard of, for instance wheat could be used. (I think Mr. Madison over-thought this one, but then again, tobacco was used as a medium of exchange for much of VA history.)
Governeur Morris (PA) looked into the future and did not wish to set judicial compensation in stone, or wheat or anything else.
The motion to remove or increase passed 6-2.
The entire amended clause passed without opposition.
Next up, the 12th. Resolved, that the national Legislature be empowered to appoint inferior Tribunals.
Pierce Butler (SC) could not see the need. State courts could do the work.
Luther Martin (MD) predicted conflict between the two.
Nathaniel Gorham (MA) reminded delegates of existing Confederate courts to deal with piracies and admiralty without complaint. Inferior courts are essential to national authority.
Governor Edmund Randolph did not see State courts properly administering national laws.
Governeur Morris (PA) supported inferior courts.
Roger Sherman (CN) apparently saw the need, but was still wary.
George Mason (VA) (Consistently among the prescient delegates imho) thought future circumstances might render such courts absolutely necessary.
The motion to empower Congress with power to appoint inferior tribunals passed without objection.
(I think the proceedings moved at such a clip that a weary Mr. Madison found it difficult to do justice to some of the debates as evidenced next)
13th Resolution, The jurisdiction of the national Judiciary shall extend to cases which respect the collection of the national revenue: impeachments of any national officers: and questions which involve the national peace and harmony,
Impeachment of any national officers was struck unanimously.
James Madison (VA) motioned to amend the resolution to read, That the jurisdiction of the national Judiciary shall extend to cases arising under laws passed by the general Legislature, and to such other questions as involve the National peace and harmony, which passed without opposition.
Next, the 14th Resolution, that provision ought to be made for the admission of States, lawfully arising within the limits of the United States, whether from a voluntary junction of government and territory, or otherwise, with the consent of a number of voices in the national Legislature less than the whole.
It passed without opposition.
15th Resolved, that provision ought to be made for the continuance of Congress and their authorities until a given day after the reform of the articles of Union shall be adopted; and for the completion of all their engagements. Governeur Morris (PA) in so many words thought Congress should be disbanded until the Constitution was ratified. (More evidence of thorough disgust with the Articles)
James Madison (VA) said the resolution merely provided for an orderly change in government.
James Wilson (PA) expressed concern over the engagements clause. (How would treaties, debt for instance be dealt with?)
The first clause of the 15th Resolution was defeated, 7-2.
The last clause of the 15th Resolution went down to unanimous defeat.
Next, was Resolution 16, That a republican constitution, and its existing laws, ought to be guaranteed to each State by the United States.
Governeur Morris (PA) slammed RI again. Why guarantee such law as existed there? James Wilson (PA) remarked the purpose was to secure the states against, well, democracy. (Here was another example of James Madison (VA)s Great Desideratum. Republican government must rest upon the sovereign people, but not too much.)
George Mason (VA) (wandered a bit off topic) said the national government must be able to suppress rebellion. (In other words, the national government could be called upon to assist the States when Slaves revolted.)
Governor Edmund Randolph viewed both provisions as necessary.
James Madison (VA) moved and James McClurg (VA) seconded to substitute "that the Constitutional authority of the States shall be guarantied to them respectively agst. domestic as well as foreign violence."
William Houston (GA) was not supportive of perpetuating (enforcing?) state Constitutions. He criticized his state Constitution. There would be contending parties claiming sanction.
Luther Martin (MD) would let the States protect and secure themselves.
Nathaniel Gorham (MA) cut to the chase. Why should the general government be prevented from subduing rebellion? (Not just the slave kind, but what about, say, a successful Shays?) (This would touch us hardly 70 years later)
Daniel Carroll (MD) (If I read this correctly) supported Mr. Madisons motion.
Governor Edmund Randolph motioned another amendment which was seconded by Mr. Madison, and that no State be at liberty to form any other than a Republican Govt.
John Rutlidge (SC) did not see the need for any specific provision to suppress rebellions.
James Wilson (PA) (got it right) wordsmithed the resolution and amendment to motion, "that a Republican form of Governmt. shall be guarantied to each State & that each State shall be protected agst. foreign & domestic violence. (Nice)
James Madison (VA) and Governor Edmund Randolph withdrew their motions. Mr. Wilsons motion passed without opposition.
Constitutional Convention Ping!
(working out of town this week, so comments will be hit or miss)