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) (Haven’t 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. Gorham’s 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. Madison’s 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. Wilson’s motion passed without opposition.
Adjourned.
Constitutional Convention Ping!