Debates in the Federal Convention of 1787
by James Madison
Wednesday, July 18
On motion of Mr. L. Martin to fix to-morrow for reconsidering the vote concerning the ineligibility of the Executive a second time, it passed in the affirmative, — Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye — 8; New Jersey, Georgia, absent.
The residue of the ninth Resolution, concerning the Executive, was postponed till to-morrow.
The tenth Resolution, “that the Executive shall have a right to negative legislative acts not afterwards passed by two-thirds of each branch,” was passed, nem. con.
The eleventh Resolution, “that a National Judiciary shall be established, to consist of one supreme tribunal,” agreed to nem. con.
On the clause, “The judges of which to be appointed by the second branch of the National Legislature,” —
Mr. Gorham would prefer an appointment by the second branch to an appointment by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to insure a good choice. He suggested that the Judges be appointed by the Executive with the advice and consent of the second branch, in the mode prescribed by the Constitution of Massachusetts. This mode had been long practised in that country, and was found to answer perfectly well.
Mr. Wilson would still prefer an appointment by the Executive; but if that could not be attained, would prefer, in the next place, the mode suggested by Mr. Gorham. He thought it his duty, however, to move in the first instance, “that the Judges be appointed by the Executive.”
Mr. Gouverneur Morris seconded the motion.
Mr. L. Martin was strenuous for an appointment by the second branch. Being taken from all the States, it would be best informed of characters, and most capable of making a fit choice.
Mr. Mason. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides against referring the appointment to the Executive. He mentioned, as one, that as the seat of government must be in some one State; and as the Executive would remain in office for a considerable time, for four, five, or six years at least, he would insensibly form local and personal attachments within the particular State that would deprive equal merit elsewhere of an equal chance of promotion.
Mr. Gorham. As the Executive will be responsible, in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of government where they reside, as the Executive. If they cannot get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibility, and give full play to intrigue and cabal. Rhode Island is a full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a public body may carry wickedness and cabal.
Mr. Gouverneur Morris supposed it would be improper for an impeachment of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature, and an impartial trial would be frustrated. As they would be much about the seat of government, they might even be previously consulted, and arrangements might be made for a prosecution of the Executive. He thought, therefore, that no argument could be drawn from the probability of such a plan of impeachments against the motion before the House.
Mr. Madison suggested, that the Judges might be appointed by the Executive, with the concurrence of one-third at least of the second branch. This would unite the advantage of responsibility in the Executive, with the security afforded in the second branch against any incautious or corrupt nomination by the Executive.
Mr. Sherman was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.
Mr. Randolph. It is true that when the appointment of the Judges was vested in the second branch an equality of votes had not been given to it. Yet he had rather leave the appointment there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate, by requiring the respective votes of the members to be entered on the Journal. He thought, too, that the hope of receiving appointments would be more diffusive, if they depended on the Senate, the members of which would be diffusively known, than if they depended on a single man, who could not be personally known to a very great extent; and consequently, that opposition to the system would be so far weakened.
Mr. Bedford thought, there were solid reasons against leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States by gratifying them with a preference of their citizens. The responsibility of the Executive, so much talked of, was chimerical. He could not be punished for mistakes.
Mr. Gorham remarked, that the Senate could have no better information than the Executive. They must like him trust to information from the members belonging to the particular State where the candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would full on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of the Judges to the Executive, instead of the second branch, — Massachusetts, Pennsylvania, aye — 2; Connecticut, Delaware, Maryland, Virginia, North Carolina, South Carolina, no — 6; Georgia, absent.
Mr. Gorham moved, “that the Judges be nominated and appointed by the Executive, by and with the advice and consent of the second branch; and every such nomination shall be made at least — days prior to such appointment.” This mode, he said, had been ratified by the experience of a hundred and forty years in Massachusetts. If the appointment should be left to either branch of the Legislature it will be a mere piece of jobbing.
Mr. Gouverneur Morris seconded and supported the motion.
Mr. Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it, as too much fettering the Senate.
On the question on Mr. Gorham’s motion, — Massachusetts, Pennsylvania, Maryland, Virginia, aye — 4; Connecticut, Delaware, North Carolina, South Carolina, no — 4; Georgia, absent.
Mr. Madison moved, “that the Judges should be nominated by the Executive, and such nomination should become an appointment if not disagreed to within — days by two-thirds of the second branch.”
Mr. Gouverneur Morris seconded the motion.
By common consent the consideration of it was postponed till to-morrow.
“To hold their offices during good behaviour, and to receive fixed salaries,” — agreed to, nem. con.
“In which [salaries of Judges] no increase or diminution shall be made so as to affect the persons actually in office at the time.”
Mr. Gouverneur Morris moved to strike out “or increase.” He thought the Legislature ought to be at liberty to increase salaries, as circumstances might require; and that this would not create any improper dependence in the Judges.
Doctor Franklin was in favor of the motion. Money may not only become plentier; but the business of the Department may increase, as the country becomes more populous.
Mr. Madison. The dependence will be less if the increase alone should be permitted; but it will be improper even so far to permit a dependence. Whenever an increase is wished by the Judges, or may be in agitation in the Legislature, an undue complaisance in the former may be felt towards the latter. If at such a crisis there should be in court suits to which leading members of the Legislature may be parties, the Judges will be in a situation which ought not to be suffered, if it can be prevented. The variations in the value of money may be guarded against by taking for a standard wheat or some other thing of permanent value. The increase of business will be provided for by an increase of the number who are to do it. An increase of salaries may easily be so contrived as not to affect persons in office.
Mr. Gouverneur Morris. The value of money may not only alter, but the state of society may alter. In this event, the same quantity of wheat, the same value, would not be the same compensation. The amount of salaries must always be regulated by the manners and the style of living in a country. The increase of business cannot be provided for in the supreme tribunal, in the way that has been mentioned. All the business of a certain description, whether more or less, must be done in that single tribunal. Additional labor alone in the Judges can provide for additional business. Additional compensation, therefore, ought not to be prohibited.
On the question for striking out, “or increase,” — Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, South Carolina, aye — 6; Virginia, North Carolina, no — 2; Georgia, absent.
The whole clause, as amended, was then agreed to, nem con.
The twelfth Resolution, “That the National Legislature be empowered to appoint inferior tribunals,” being taken up, —
Mr. Butler could see no necessity for such tribunals. The State tribunals might do the business.
Mr. L. Martin concurred. They will create jealousies and oppositions in the State tribunals, with the jurisdiction of which they will interfere.
Mr. Gorham. There are in the States already Federal Courts, with jurisdiction for trial of piracies, &c. committed on the seas. No complaints have been made by the States or the courts of the States. Inferior tribunals are essential to render the authority of the National Legislature effectual.
Mr. Randolph observed, that the courts of the States cannot be trusted with the administration of the National laws. The objects of jurisdiction are such as will often place the general and local policy at variance.
Mr. Gouverneur Morris urged also the necessity of such a provision.
Mr. Sherman was willing to give the power to the Legislature, but wished them to make use of the State tribunals, whenever it could be done with safety to the general interest.
Col. Mason thought many circumstances might arise, not now to be foreseen, which might render such a power absolutely necessary.
On the question for agreeing to the twelfth Resolution, empowering the National Legislature to appoint inferior tribunals, — it was agreed to, nem. con.
The clause of “Impeachments of national officers,” was struck out, on motion for the purpose.
The thirteenth Resolution, “The jurisdiction of the National Judiciary, &c.” being then taken up, several criticisms having been made on the definition, it was proposed by Mr. Madison so to alter it as to read thus; “that the jurisdiction shall extend to all cases arising under the national laws; and to such other questions as may involve the national peace and harmony;” which was agreed to, nem. con.
The fourteenth Resolution, providing for the admission of new States, was agreed to, nem. con.
The fifteenth Resolution, “that provision ought to be made for the continuance of Congress, &c. and for the completion of their engagements,” being considered, —
Mr. Gouverneur Morris thought the assumption of their engagements might as well be omitted; and that Congress ought not to be continued till all the States should adopt the reform; since it may become expedient to give effect to it whenever a certain number of States shall adopt it.
Mr. Madison. The clause can mean nothing more than that provision ought to be made for preventing an interregnum; which must exist, in the interval between the adoption of the new Government and the commencement of its operation, if the old Government should cease on the first of these events.
Mr. Wilson did not entirely approve of the manner in which the clause relating to the engagements of Congress was expressed; but he thought some provision on the subject would be proper in order to prevent any suspicion that the obligations of the Confederacy might be dissolved along with the Government under which they were contracted.
On the question on the first part, relating to the continuance of Congress, — Virginia, North Carolina, South Carolina,1 aye — 3; Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Georgia, no — 6. The second part, as to the completion of their engagements, was disagreed to, nem. con.
The sixteenth Resolution, “That a republican Constitution and its existing laws ought to be guaranteed to each State by the United States” being considered, —
Mr. Gouverneur Morris thought the Resolution very objectionable. He should be very unwilling that such laws as exist in Rhode Island should be guaranteed.
Mr. Wilson. The object is merely to secure the States against dangerous commotions, insurrections and rebellions.
Col. Mason. If the General Government should have no right to suppress rebellions against particular States, it will be in a bad situation indeed. As rebellions against itself originate in and against individual States, it must remain a passive spectator of its own subversion.
Mr. Randolph. The Resolution has two objects, — first, to secure a republican government; secondly, to suppress domestic commotions. He urged the necessity of both these provisions.
Mr. Madison moved to substitute, “that the constitutional authority of the States shall be guaranteed to them respectively against domestic as well as foreign violence.”
Doctor McClurg seconded the motion.
Mr. Houston was afraid of perpetuating the existing Constitutions of the States. That of Georgia was a very bad one, and he hoped would be revised and amended. It may also be difficult for the General Government to decide between contending parties, each of which claim the sanction of the Constitution.
Mr. L. Martin was for leaving the States to suppress rebellions themselves.
Mr. Gorham thought it strange that a rebellion should be known to exist in the Empire, and the General Government should be restrained from interposing to subdue it. At this rate an enterprising citizen might erect the standard of monarchy in a particular State, might gather together partizans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole, and the General Government be compelled to remain an inactive witness of its own destruction. With regard to different parties in a State, as long as they confine their disputes to words, they will be harmless to the General Government and to each other. If they appeal to the sword, it will then be necessary for the General Government, however difficult it may be, to decide on the merits of their contest, to interpose and put an end to it.
Mr. Carroll. Some such provision is essential. Every State ought to wish for it. It has been doubted whether it is a casus fœderis at present; and no room ought to be left for such a doubt hereafter.
Mr. Randolph moved to add, as an amendment to the motion, “and that no State be at liberty to form any other than a republican government.”
Mr. Madison seconded the motion.
Mr. Rutledge thought it unnecessary to insert any guarantee. No doubt could be entertained but that Congress had the authority, if they had the means, to co-operate with any State in subduing a rebellion. It was and would be involved in the nature of the thing.
Mr. Wilson moved, as a better expression of the idea, “that a republican form of Government shall be guaranteed to each State; and that each State shall be protected against foreign and domestic violence.”
1 In the printed Journal, South Carolina, no.Return to text