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.
John Dickinson motioned to make judges removable on the concurrence of Congress and President. No indictment in the House nor trial in the Senate, just agreement by two branches to remove a member of the third.
The notion wasn’t rejected out of hand. Roger Sherman’s comment was another reminder of the respect our Framers had for the British system, for their judges were apparently removable on a simple majority of Parliament. The difference though, was that judges were more or less an arm of the Crown, where ours were to be largely independent. To boot a Brit judge was to register displeasure with the King.
Fortunately, an emerging doctrine of separation of powers was setting in. Governeur Morris and James Wilson foresaw trouble when various “gust(s) of faction” swept Congress and judges were subject to arbitrary, political vendettas.
As enticing as Dickinson’s motion appeared, I think the Framers made the best choice. Limit judge removal to formal impeachment, trial and conviction. It is however, unfortunate the bar for removal has become so high, and our two party system has become so corrupt as to excuse clearly criminal behavior.