James Madison's Notes of the Constitutional Convention (June 5, 1787)

Tuesday June 5. In Committee of the Whole

(Governor Livingston from New Jersey took his seat.

The words, "one or more" were struck out before "inferior tribunals" as an amendment to the last clause of Resoln. 9th.)1 (The) Clause — "that the national Judiciary be (chosen) by the National Legislature", (being under consideration.)2

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 him, and share his practice (among themselves). It was here he said 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, & and a blank left to be hereafter filled on maturer reflection. Mr. Wilson seconds it. On the question for striking out. Massts. ay. Cont. no. N. Y. ay. N. J. ay. Pena. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. [Ayes — 9; noes — 2.]

(Mr. Wilson gave notice that he should at a future day move for a reconsideration of that 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. 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"

The remaining clause of Resolution 9. was postponed.

Resolution 10 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:) " 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) " 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.* ay. Pa. ay. Del. no. Md. ay. Va. ay. N C. ay. S. C. ay. G. ay. [Ayes — 9; noes — 2.]

(propos: 13.) "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. Pinkney doubted the propriety or necessity of it.

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 proves 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. "requiring oath from the State officers to support national Govt." was postponed after a short uninteresting conversation; (the votes, Con. N. Jersey. Md. Virg: S. C. Geo. ay N. Y. Pa. Del. N. C. . . . no Massachusetts. . . . divided)

(propos. 15.) 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. M(adison) 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 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. —*

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

The (propos. 15.) was postponed nem. cont:

(Mr. Pinkney & Mr. Rutlidge moved that tomorrow be assigned to reconsider that clause of Propos. 4: which respects the elections of the first branch of the National Legislature — which passed in affirmative: Con: N. Y. Pa. Del: Md. 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.) 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. Sherman 2ded. the motion.)

Mr. (Madison) observed that unless inferior tribunals were dispersed throughout the Republic with final juridsiction 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"

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 [Ayes — 5; noes — 4; divided — 2.]

Mr. Wilson & Mr. Madison then moved, in pursuance of the idea expressed above by Mr. Dickinson, to add to Resol: 9. 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. and Mr. M.

Mass. ay. Ct. no. N. Y. divd. N. J.* ay. Pa. ay. Del. ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. [Ayes — 8; noes — 2; divided — 1.]

The Committee then rose & the House adjourned to 11 OC. tomw.

Endnotes:

[* ] (New Jersey omitted in the Printed Journal)

[* ] This hint was probably meant in terrorem to the smaller States of N. Jersey & Delaware. Nothing was said in reply to it.

[* ] (In the printed Journal N. Jersey — no.)