Debates in the Federal Convention of 1787

by James Madison

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Tuesday, June 5

Governor LIVINGSTON, of New Jersey, took his seat.

In Committee of the Whole. — The words “one or more” were struck out before “inferior tribunals,” as an amendment to the last clause of the ninth Resolution. The clause, “that the National Judiciary be chosen by the National Legislature,” being under consideration.

Mr. WILSON opposed the appointment of Judges by the National Legislature. Experience showed the impropriety of such appointments 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. RUTLEDGE 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.

Doctor FRANKLIN observed, that two modes of choosing 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 practised 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 enough 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, — Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, aye — 9; Connecticut, South Carolina, no — 2.

Mr. WILSON gave notice that he should at a future day move for a reconsideration of that clause which respects “inferior tribunals.”

Mr. PINCKNEY 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 the ninth Resolution 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 nor 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 the ninth Resolution was postponed.

The tenth Resolution was agreed to, viz., “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.”

The eleventh Resolution for guaranteeing to States republican government and 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 and South Carolina only voting against it. 

The twelfth Resolution, for continuing Congress till a given day, and for fulfilling their engagements, produced no debate.

On the question, Massachusetts, New York, New Jersey, 1Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye — 8; Connecticut, Delaware, no — 2.

The thirteenth Resolution, to the effect that provision ought to be made for hereafter amending the system now to be established, without requiring the assent of the National Legislature, being taken up, –

Mr. PINCKNEY doubted the propriety or necessity of it.

Mr. GERRY favored it. The novelty and difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the government. Nothing had yet happened in the States where this provision existed to prove its impropriety. — The proposition was postponed for further consideration; the votes being, — Massachusetts, Connecticut, New York, Pennsylvania, Delaware, Maryland, North Carolina, aye — 7; Virginia, South Carolina, Georgia, no — 3.

The fourteenth Resolution, requiring oath from the State officers to support the National Government, — was postponed, after a short, uninteresting conversation; the votes, — Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, aye — 6; New York, Pennsylvania, Delaware, North Carolina, no — 4; Massachusetts, divided.

The fifteenth Resolution, 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 Congress, and ratification of State Legislatures.

Mr. MADISON thought this provision essential. The Articles of Confederation 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 Congress, 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 Confederation 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 Massachusetts, and giving all the other powers of government to the other branch of the Legislature.

Mr. KING supposed, that the last Article of the Confederation 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, impliedlygiven 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 through it, than through 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.2

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

The fifteenth Resolution was postponed, nem. con.

Mr. PINCKNEY and Mr. RUTLEDGE moved, that to-morrow be assigned to reconsider that clause of the fourth Resolution which respects the election of the first branch of the National Legislature; which passed in the affirmative, — Connecticut, New York, Pennsylvania, Delaware, Maryland, Virginia, aye — 6; Massachusetts, New Jersey, North Carolina, South Carolina, Georgia, no — 5.

Mr. RUTLEDGE, having 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 the ninth Resolution 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 and uniformity of judgments; 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 seconded the motion.

Mr. MADISON observed, that unless inferior tribunals were dispersed throughout the Republic with final jurisdiction 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; though 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 and 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, and 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. RUTLEDGE’S motion to strike out “inferior tribunals,” it passed in the affirmative, — Connecticut, New York, New Jersey, North Carolina, South Carolina, Georgia, aye — 6; Pennsylvania, Delaware, Maryland, Virginia, no — 4; Massachusetts, divided.

Mr. WILSON and Mr. MADISON then moved, in pursuance of the idea expressed above by Mr. DICKINSON, to add to the ninth Resolution 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 to 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 government he could devise, but the best they would receive. 

Mr. KING remarked, as to the comparative expense, that the establishment of inferior tribunals would cost infinitely less than the appeals that would be prevented by them.

On this question, as moved by Mr. WILSON and Mr. MADISON, — Massachusetts, New Jersey,3 Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, aye — 8; Connecticut, South Carolina, no — 2; New York, divided.

The Committee then rose, and the House adjourned.

1 New Jersey omitted in the printed Journal. Return to text

2 This hint was probably meant in terrorem to the smaller States of New Jersey and Delaware. Nothing was said in reply to it. Return to text

3 In the printed Journal, New Jersey, no. Return to text

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The year was 1787. The place: the State House in Philadelphia. This is the story of the framing of the federal Constitution.

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