Journal of the Federal Convention August 27th 1787

Article X. Pardons. Militia. Interim Presidents. Preserve, Protect and Defend. Oaths. Article XI Sections 1-3. Judiciary. Gusts of Faction. Judicial Salaries & Jurisdiction. Samuel Johnson & Judicial Review. Judiciary Nature. Madison & Morris Judicial Power.

Mr. L. MARTIN moved to insert the words "after conviction" after the words "reprieves and pardons"

Mr. WILSON objected that pardon before conviction might be necessary in order to obtain the testimony of accomplices. He stated the case of forgeries in which this might particularly happen

Mr. SHERMAN moved to amend the clause giving the Executive the command of the Militia, so as to read "and of the Militia of the several States, when called into the actual service of the U. S." and on the Question

N. H. ay. Mas. abst. Ct. ay. N. J. abst. Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C. no. Geo. ay. [FN3]

The clause for removing the President on impeachment by the House of Reps. and conviction in the supreme Court, of Treason, Bribery or corruption, was postponed nem: con: at the instance of Mr. Govr. MORRIS, who thought the Tribunal an improper one, particularly, if the first judge was to be of the privy Council.

Mr. Govr. MORRIS objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.

Mr. MADISON added as a ground of objection that the Senate might retard the appointment of a President in order to carry points whilst the revisionary power was in the President of their own body, but suggested that the Executive powers during a vacancy, be administered by the persons composing the Council to the President.

Mr. WILLIAMSON suggested that the Legislature ought to have power to provide for occasional successors & moved that the last clause [of 2 sect. X art: ] relating to a provisional successor to the President be postponed.

Mr. DICKINSON 2ded. the postponement, remarking that it was too vague. What is the extent of the term "disability" & who is to be the judge of it?

Col: MASON & Mr. MADISON, moved to add to the oath to be taken by the supreme Executive "and will to the best of my judgment and power preserve protect and defend the Constitution of the U. S." Mr. WILSON thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary-

N. H. ay. Mas. abst. Ct. ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C. ay. Geo. ay. [FN4]

Docr. JOHNSON suggested that the judicial power ought to extend to equity as well as law-and moved to insert the words "both in law and equity" after the words "U. S." in the 1st. line, of sect. 1.

N. H. ay. Mas. absent. Ct. ay. N. J. abst. P. ay. Del. no. Md. no. Virga. ay. N. C. abst. S. C. ay. Geo. ay. [FN7]

N. H. ay. Mas. abst. Ct. ay. Pa. ay. N. J. abst. Del. no. Md. no. Va. ay. N. C. abst. S. C. ay. Geo. ay.

Mr. DICKINSON moved as an amendment to sect. 2. art XI [FN5] after the words "good behavior" the words "provided that they may be removed by the Executive on the application by the Senate and House of Representatives."

Mr. Govr. MORRIS thought it a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removeable without a trial. Besides it was fundamentally wrong to subject Judges to so arbitrary an authority.

Mr. SHERMAN saw no contradiction or impropriety if this were made part of the constitutional regulation of the Judiciary establishment. He observed that a like provision was contained in the British Statutes.

Mr. RUTLIDGE. If the Supreme Court is to judge between the U. S. and particular States, this alone is an insuperable objection to the motion.

Mr. WILSON considered such a provision in the British Government as less dangerous than here, the House of Lords & House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had successively offended by his independent conduct, both houses of Parliament. Had this happened at the same time, he would have been ousted. The judges would be in a bad situation if made to depend on every [FN9] gust of faction which might prevail in the two branches of our Govt. Mr. RANDOLPH opposed the motion as weakening too much the independence of the Judges.

Mr. DICKINSON was not apprehensive that the Legislature composed of different branches constructed on such different principles, would improperly unite for the purpose of displacing a Judge.

N. H. no. Mas. abst. Ct. ay. N. J. abst. Pa. no. Del. no. Md. no. Va. no. N. C. abst. S. C. no. Geo. no.

Mr. MADISON and Mr. Mc.HENRY moved to reinstate the words "increased or" before the word "diminished" in the 2d. sect. art XI.

Col: MASON contended strenuously for the motion. There was no weight he said in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office, and this was the only argument on which much stress seemed to have been laid.

Genl. PINKNEY. The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the U. S. can allow [FN11] in the first instance. He was not satisfied with the expedient mentioned by Col: Mason. He did not think it would have a good effect or a good appearance, for new Judges to come in with higher salaries than the old ones.

Mr. Govr. MORRIS said the ex pedient might be evaded & therefore amounted to nothing. Judges might resign, and then be reappointed to increased salaries.

N. H. no. Ct. no. Pa. no. Del. no. Md. divd. Va. ay. S. C. no. Geo. abst. also Mas. N. J. & N. C. [FN12]

Mr. RANDOLPH & Mr. MADISON then moved to add the following words to sect. 2. art XI. "nor increased by any Act of the Legislature which shall operate before the expiration of three years after the passing thereof"

N. H. no. Ct. no. Pa. no. Del. no. Md. ay. Va. ay. S. C. no. Geo. abst. also Mas. N. J. & N. C. [FN13]

Sect. 3. art. XI [FN14] being taken up, the following clause was postponed- viz. "to the trial of impeachments of officers of the U. S." by which the jurisdiction of the supreme Court was extended to such cases.

Mr. MADISON & Mr. Govr. MORRIS moved to insert after the word "controversies" the words "to which the U. S. shall be a party." which was agreed to nem: con:

Docr. JOHNSON moved to insert the words "this Constitution and the" before the word "laws"

Mr. MADISON doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.

The motion of Docr. Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.

On motion of Mr. RUTLIDGE the words "passed by the Legislature" were struck out, and after the words "U. S" were inserted nem. con: the words "and treaties made or which shall be made under their authority" conformably to a preceding amendment in another place.

Mr. Govr. MORRIS wished to know what was meant by the words "In all the cases before mentioned it [jurisdiction] shall be appellate with such exceptions &c," whether it extended to matters of fact as well as law-and to cases of Common law as well as Civil law.

Mr. WILSON. The Committee he believed meant facts as well as law & Common as well as Civil law. The jurisdiction of the federal Court of Appeals had he said been so construed.

Mr. DICKINSON moved to add after the word "appellate" the words both as to law & fact which was agreed to nem: con:

Mr. MADISON & Mr. Govr. MORRIS moved to strike out the beginning of the 3d. sect. "The jurisdiction of the supreme Court" & to insert the words "the Judicial power" which was agreed to nem: con:

The following motion was disagreed to, to wit to insert "In all the other cases before mentioned the Judicial power shall be exercised in such manner as the Legislature shall direct"

On a question for striking out the last sentence of sect. 3. "The Legislature may assign &c." [FN17]

Mr. SHERMAN moved to insert after the words "between Citizens of different States" the words, "between Citizens of the same State claiming lands under grants of different States"-according to the provision in the 9th. Art: of the Confederation-which was agreed to nem: con:

FN3 In the transcript the vote reads: "New Nampshire, Connecticut, Pennsylvania, Maryland, Virginia, Georgia, aye-6; Dlaware, South Carolina, no- 2; Massachusetts, New Jersey, North Carolina, absent."

FN4 In the transcript the vote reads: "New hampshire, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, aye-7; Delaware, no, Massachusetts, New Jersey, North CArolina, absent."

FN7 In the transcript the vote reads: "New Hampshire, Connecticut, Pennsylvania, Virginia, South Carolina, Georgia, aye-6; Delaware, Maryland, no-2; Massachusetts, New Jersey, North Carolina, absent"

FN8 The transcript here inserts the following: "the States were the same as on the preceding question." The vote by States is omitted.

FN10 The transcript here inserts the following: "it was negatived, Connecticut, aye; all the other States present, no." The vote by States is omitted.

FN12 In the transcript the vote reads: "Virginia, aye-1; New Hampshire Connecticut, Pennsylvania, Delaware, South Carolina, no-5; Maruyland, divided. Massachusetts, New Jersey, North Carolina, Georgia, absent."

FN13 In the transcript the vote reads: "Maryland, Virginia, aye-2; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no-5; Massachusetts, New Jersejy, North CArolina, Georgia, absent."

Luther Martin (MD) moved to insert the words "after conviction" after the words "reprieves and pardons." (It would read, “He shall have power to grant reprieves and pardons after conviction.”) James Wilson (PA) explained why pre-conviction pardons may be needed.

Mr. Martin withdrew his motion.

Roger Sherman (CN) motioned to amend the clause giving Executive power over the militia to read, “and of the Militia of the several States, when called into the actual service of the U.S," which was approved 6-2.

(For some reason the clause dealing with Presidential impeachment was postponed without opposition.)

Governeur Morris (PA) proffered the Chief Justice to become interim President (Article X Section 2) when required rather than the President of the Senate.

James Madison (VA) (If I understand him correctly) did not think it prudent for the President of the Senate to assume the Executive either. He suggested the Privy Council serve as interim Executive.

Hugh Williamson (NC) suggested Legislative selection and appointment of a provisional Executive. He motioned, and Mr. Dickinson seconded to postpone consideration of the clause. Mr. Dickinson thought the term, “disability” too vague; who was to decide it?

The last Clause of Article X Section 2 was postponed without opposition.

George Mason (VA) & James Madison (VA) motioned to add a clause to Article X Section 2, so as to read, "I - solemnly swear, (or affirm) that that I will faithfully execute the office of President of the United States of America, and will to the best of my judgment and power preserve protect and defend the Constitution of the U. S."

James Wilson (PA) (Quakers would not take oaths. It was a serious matter in the first 70 years of PA government) implied the clause unnecessary since Article XX dealt with oaths. (Article XX, “The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.”)

The motion of Mr. Mason and Mr. Madison passed 7-1.

Article XI Sect. 1. “The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States,” was next.

Dr. William Samuel Johnson (CN) motioned to add, "both in law and equity" after the words "U. S." (I think equity is nearly synonymous with tort law.)

Judge George Read (DE) objected to vesting both powers in the same court. (For the lack of a professional recorder we know next to nothing of Judge Read’s argument. Such a loss.)

Mr. Johnson’s motion passed 6-2.

John Dickinson (DE) motioned and Elbridge Gerry (MA) seconded to amend Article XI Sect. 2 so as to read, “The Judges of the Supreme Court, and of the Inferior Courts, shall hold their offices during good behaviour, provided that they may be removed by the Executive on the application by the Senate and House of Representatives. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Governeur Morris (PA) thought the clause would lead to arbitrary removal of judges without trial.

Roger Sherman (CN) disagreed and observed it was part of British statutes.

John Rutlidge (SC) (made a comment I do not comprehend)

James Wilson (PA) thought the amendment inappropriate for our government. He described an anecdote involving Judge Holt in Britain, where the Commons and House of Lords were less likely to agree on booting judges. He feared Congress and the President would frequently give in to “gusts of faction.”

Governor Edmund Randolph thought it unnecessarily weakened Judicial independence.

John Dickinson (DE) could not envision the Congress and President improperly agreeing to boot a Judge.

Mr. Dickinson’s motion failed 7-1.

The question of Article XI Section 2, “The Judges of the Supreme Court, and of the Inferior Courts, shall hold their offices during good behaviour. They shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office,” passed in the affirmative.

James Madison (VA) & James McHenry (MD) motioned to reinstate “increased or” before “diminished.” (Talk about beating a dead horse.)

Governeur Morris (PA) still opposed it as previously.

George Mason (VA) supported the motion.

General Pinckney (SC) noted that to draw talented men, decent salaries were required. It would not do to have new judge salaries greater than incumbents.

Governeur Morris (PA) said it would induce men to resign in order to be rehired at a higher salary.

The motion to prevent an increase in sitting Judge’s salaries was defeated 5-1-1.

Governor Edmund Randolph & James Madison (VA) moved to add to the end of Article XI Section 2, “"nor increased by any Act of the Legislature which shall operate before the expiration of three years after the passing thereof," which failed 5-2.”

Article XI Section 3 was up next. “The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States, (except such as shall regard Territory or Jurisdiction) between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects. In cases of impeachment, cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be party, this jurisdiction shall be original. In all the other cases beforementioned, it shall be appellate, with such exceptions and under such regulations as the Legislature shall make. The Legislature may assign any part of the jurisdiction abovementioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time.”

A clause as to jurisdiction, “to the trial of impeachments of officers of the U. S," was postponed. (For a reason unexplained by Mr. Madison.)

James Madison (VA) and Governeur Morris (PA) motioned to add “to which the US shall be a party” after the word “controversy.” This motion passed without opposition.

Dr. William Samuel Johnson (CN) wished to add, “this Constitution and the,” before the word “laws.”

James Madison (VA) did not wish to extend jurisdiction generally to cases arising under the Constitution, but limit it to cases of a “Judiciary” nature.

Mr. Johnson’s motion carried without opposition, but with an unwritten qualifier noted by Mr. Madison, “it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary Nature.”

John Rutlidge (SC) motioned and the Convention agreed to strike, “passed by the Legislature.”

An amendment to include treaties made or which shall be made under US authority to the Court’s jurisdiction was then approved.

The Clause “in cases of impeachment . . . “ was postponed.

Governeur Morris (PA) wished for further explanation of the clause, “In all other cases before mentioned . . .” Did it also mean matters of fact as well as law-and to cases of Common law as well as Civil law?

James Wilson (PA) (a member of the drafting committee) said yes, it was intended for jurisdiction to extend to those cases.

John Dickinson (DE) motioned to add, “both as to law and fact,” after the word “appellate,” which was agreed to without opposition.

James Madison (VA) and Governeur Morris (PA) moved to strike, "The jurisdiction of the supreme Court" & to insert the words "the Judicial power" which was agreed to without opposition.

The following amendment was disagreed to, "In all the other cases before mentioned the Judicial power shall be exercised in such manner as the Legislature shall direct"

Without explanation from Mr. Madison, the last sentence, “The Legislature may assign any part of the jurisdiction abovementioned (except the trial of the President of the United States) in the manner, and under the limitations which it shall think proper, to such Inferior Courts, as it shall constitute from time to time,” was struck, 8-0.

Roger Sherman (CN) motioned to add, “between Citizens of the same State claiming lands under grants of different States," after "between Citizens of different States," which was agreed to without opposition.

Adjourned.

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