Debates in the Federal Convention of 1787
by James Madison
Wednesday, June 13
In Committee of the Whole,
The ninth Resolution being resumed, —
The latter part of the clause relating to the jurisdiction of the national tribunals, was struck out, nem. con.; in order to leave full room for their organization.
Mr. RANDOLPH and Mr. MADISON then moved the following resolution respecting a national Judiciary, viz.: “that 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.” Agreed to.
Mr. MADISON objected to an appointment by the whole Legislature. Many of them are incompetent judges of the requisite qualifications. They were too much influenced by their partialities. The candidate who was present, who had displayed a talent for business in the legislative field, who had, perhaps, assisted ignorant members in business of their own, or of their constituents, or used other winning means, would, without any of the essential qualifications for an expositor of the laws, prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment. He proposed that the appointment should be made by the Senate; which, as a less numerous and more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them.
Mr. GERRY moved to restrain the Senatorial branch from originating money bills. The other branch was more immediately the representatives of the people, and it was a maxim, that the people ought to hold the purse-strings. If the Senate should be allowed to originate such bills, they would repeat the experiment, till chance should furnish a set of Representatives in the other branch who will fall into their snares.
Mr. BUTLER saw no reason for such a discrimination. We were always following the British Constitution, when the reason of it did not apply. There was no analogy between the House of Lords and the body proposed to be established. If the Senate should be degraded by any such discriminations, the best men would be apt to decline serving in it, in favor of the other branch. And it will lead the latter into the practice of tacking other clauses to money bills.
Mr. MADISON observed, that the commentators on the British Constitution had not yet agreed on the reason of the restriction on the House of Lords, in money bills. Certain it was, there could be no similar reason in the case before us. The Senate would be the representatives of the people, as well as the first branch. If they should have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. As the Senate would be generally a more capable set of men, it would be wrong to disable them from any preparation of the business, especially of that which was most important, and, in our republics, worse prepared than any other. The gentleman, in pursuance of his principle, ought to carry the restraint to the amendment, as well as the originating of money bills; since an addition of a given sum would be equivalent to a distinct proposition of it.
Mr. READ favored the proposition, but would not extend the restraint to the case of amendments.
Mr. PINCKNEY thinks the question premature. If the Senate should be formed on the same proportional representation as it stands at present, they should have equal power; otherwise, if a different principle should be introduced.
Mr. SHERMAN. As both branches must concur, there can be no danger, whichever way the Senate may be formed. We establish two branches in order to get more wisdom, which is particularly needed in the finance business. The Senate bear their share of the taxes, and are also the representatives of the people. ‘What a man does by another, he does by himself,’ is a maxim. In Connecticut both branches can originate, in all cases, and it has been found safe and convenient. Whatever might have been the reason of the rule as to the House of Lords, it is clear that no good arises from it now even there.
General PINCKNEY. This distinction prevails in South Carolina, and has been a source of pernicious disputes between the two branches. The Constitution is now evaded by informal schedules of amendments, handed from the Senate to the other House.
Mr. WILLIAMSON wishes for a question, chiefly to prevent re-discussion. The restriction will have one advantage; it will oblige some member in the lower branch to move, and people can then mark him.
On the question for excepting money-bills, as proposed by Mr. GERRY, — New York, Delaware, Virginia, aye — 3; Massachusetts, Connecticut, New Jersey, Maryland, North Carolina, South Carolina, Georgia, no — 7.
The Committee rose, and Mr. GORHAM made report, which was postponed till to-morrow, to give an opportunity for other plans to be proposed — the Report was in the words following:
1. Resolved, that it is the opinion of this Committee, that a national Government ought to be established, consisting of a supreme Legislative, Executive and Judiciary.
2. Resolved, that the National Legislature ought to consist of two branches.
3. Resolved, that the members of the first branch of the National Legislature ought to be elected by the people of the several States for the term of three years; to receive fixed stipends by which they may be compensated for the devotion of their time to the public service, to be paid out of the National Treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the first branch,) during the term of service, and under the national Government for the space of one year after its expiration.
4. Resolved, that the members of the second branch of the National Legislature ought to be chosen by the individual Legislatures; to be of the age of thirty years at least; to hold their offices for a term sufficient to insure their independence, namely, seven years; to receive fixed stipends by which they may be compensated for the devotion of their time to the public service, to be paid out of the National Treasury; to be ineligible to any office established by a particular State, or under the authority of the United States, (except those peculiarly belonging to the functions of the second branch,) during the term of service, and under the national Government, for the space of one year after its expiration.
5. Resolved, that each branch ought to possess the right of originating acts.
6. Resolved, that the National Legislature ought to be empowered to enjoy the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening, in the opinion of the National Legislature, the Articles of Union, or any treaties subsisting under the authority of the Union.
7. Resolved, that the rights of suffrage in the first branch of the National Legislature, ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation, namely, in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three-fifths of all other persons, not comprehended in the foregoing description, except Indians not paying taxes, in each State.
8. Resolved, that the right of suffrage in the second branch of the National Legislature, ought to be according to the rule established for the first.
9. Resolved, that a National Executive be instituted, to consist of a single person; to be chosen by the National Legislature, for the term of seven years; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be ineligible a second time; and to be removable on impeachment and conviction of malpractices or neglect of duty; to receive a fixed stipend by which he may be compensated for the devotion of his time to the public service, to be paid out of the National Treasury.
10. Resolved, that the national Executive shall have a right to negative any legislative act which shall not be afterwards passed by two-thirds of each branch of the national Legislature.
11. Resolved, that a national Judiciary be established, to consist of one supreme tribunal, the Judges of which shall be appointed by the second branch of the national Legislature, 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.
12. Resolved, that the national Legislature be empowered to appoint inferior tribunals.
13. Resolved, that the jurisdiction of the national Judiciary shall extend to all cases which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony.
14. Resolved, 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.
15. Resolved, that provision ought to be made for the continuance of Congress and their authorities and privileges, until a given day, after the reform of the Articles of Union shall be adopted, and for the completion of all their engagements.
16. Resolved, that a republican constitution, and its existing laws, ought to be guaranteed to each State, by the United States.
17. Resolved, that provision ought to be made for the amendment of the Articles of Union, whensoever it shall seem necessary.
18. Resolved, that the Legislative, Executive and Judiciary powers within the several States, ought to be bound by oath to support the Articles of Union.
19. Resolved, that the amendments which shall be offered to the Confederation by the Convention ought, at a proper time or times after the approbation of Congress, to be submitted to an assembly or assemblies recommended by the several Legislatures, to be expressly chosen by the people to consider and decide thereon.