Debates in the Federal Convention of 1787
by James Madison
Monday, August 27
Article 10, Section 2, being resumed, —
Mr. L. Martin moved to insert the words, “after conviction,” after the words, “reprieves and pardons.”
Mr. Wilson objected, that pardon before conviction might be necessary, in order to obtain the testimony of accomplices. He stated the case of forgeries, in which this might particularly happen.
Mr. L. Martin withdrew his motion.
Mr. Sherman moved to amend the clause giving the Executive the command of the militia, so as to read: “and of the militia of the several states, when called into the actual service of the United States;” and on the question, —
New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, Georgia, aye, — 6; Delaware, South Carolina, no, — 2; Massachusetts, New Jersey, North Carolina, absent.
The clause for removing the President, on impeachment by the House of Representatives, and conviction in the Supreme Court of treason, bribery, or corruption, was postponed, nem. con., at the instance of Mr. Gouverneur Morris; who thought the tribunal an improper one, particularly, if the first Judge was to be of the Privy Council.
Mr. Gouverneur Morris objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.
Mr. Madison adds, as a ground of objection, that the Senate might retard the appointment of a President, in order to carry points, whilst the revisionary power was in the President of their own body; but suggested that the executive powers during a vacancy be administered by the persons composing the Council to the President.
Mr. Williamson suggested, that the Legislature ought to have power to provide for occasional successors: and moved that the last clause of Article 10, Sect. 2, relating to a provisional successor to the President, be postponed.
Mr. Dickinson seconded the postponement, remarking that it was too vague. What is the extent of the term “disability,” and who is to be the judge of it?
The postponement was agreed to, nem. con.
Col. Mason and Mr. Madison moved to add to the oath to be taken by the Supreme Executive, “and will, to the best of my judgment and power, preserve, protect, and defend, the Constitution of the United States.”
Mr. Wilson thought the general provision for oaths of office in a subsequent place, rendered the amendment unnecessary.
On the question, —
New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, aye, — 7; Delaware, no, — 1; Massachusetts, New Jersey, North Carolina, absent.
Article 11 being next taken up, —
Doctor Johnson suggested that the judicial power ought to extend to equity as well as law; and moved to insert the words “both in law and equity,” after the words “United States,” in the first line of the first section.
Mr. Read objected to vesting these powers in the same court.
On the question, —
New Hampshire, Connecticut, Pennsylvania, Virginia, South Carolina, Georgia, aye, — 6; Delaware, Maryland, no, — 2; Massachusetts, New Jersey, North Carolina, absent.
On the question to agree to Article 11, Sect. 1, as amended, the States were the same as on the preceding question.
Mr. Dickinson moved, as an amendment to Article 11, Sect. 2, after the words “good behaviour,” the words, “provided that they may be removed by the Executive on the application by the Senate and House of Representatives.”
Mr. Gerry seconded the motion.
Mr. Gouverneur Morris thought it a contradiction in terms, to say, that the Judges should hold their offices during good behaviour, and yet be removeable without a trial. Besides, it was fundamentally wrong to subject judges to so arbitrary an authority.
Mr. Sherman saw no contradiction or impropriety, if this were made a part of the constitutional regulation of the Judiciary establishment. He observed, that a like provision was contained in the British statutes.
Mr. Rutledge. If the Supreme Court is to judge between the United States and particular States, this alone is an insuperable objection to the motion.
Mr. Wilson considered such a provision in the British Government as less dangerous than here; the House of Lords and House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had successively offended, by his independent conduct, both Houses of Parliament. Had this happened at the same time, he would have been ousted. The Judges would be in a bad situation, if made to depend on any gust of faction which might prevail in the two branches of our Government.
Mr. Randolph opposed the motion, as weakening too much the independence of the Judges.
Mr. Dickinson was not apprehensive that the Legislature, composed of different branches, constructed on such different principles, would improperly unite for the purpose of displacing a Judge.
On the question for agreeing to Mr. Dickinson’s motion, it was negatived, — Connecticut, aye; all the other States present, no.
On the question on Article 11, Section 2, as reported, — Delaware and Maryland only, no.
Mr. Gouverneur Morris opposed it, for reasons urged by him on a former occasion.
Colonel Mason contended strenuously for the motion. There was no weight, he said, in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries, so made as not to affect persons in office; — and this was the only argument on which much stress seemed to have been laid.
General Pinckney. The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary; larger than the United States can afford, in the first instance. He was not satisfied with the expedient mentioned by Colonel Mason. He did not think it would have a good effect, or a good appearance, for new Judges to come in with higher salaries than the old ones.
Mr. Gouverneur Morris said the expedient might be evaded, and therefore amounted to nothing. Judges might resign, and then be reappointed to increased salaries.
On the question, —
Virginia, aye, — 1; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no, — 5; Maryland, divided; Massachusetts, New Jersey, North Carolina, Georgia, absent.
Mr. Randolph and Mr. Madison then moved to add the following words to Article 11, Section 2: “nor increased by any act of the legislature which shall operate before the expiration of three years after the passing thereof.”
On the question, — Maryland, Virginia, aye, — 2; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no, — 5; Massachusetts, New Jersey, North Carolina, Georgia, absent.
Article 11, Section 3, being taken up, the following clause was post poned, viz.: “to the trial of impeachments of officers of the United States;” by which the jurisdiction of the Supreme Court was extended to such cases.
Doctor Johnson moved to insert the words, “this Constitution and the,” before the word “laws.”
Mr. Madison doubted whether it was not going too far, to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution, in cases not of this nature, ought not to be given to that department.
The motion of Doctor Johnson was agreed to, nem. con., it being generally supposed, that the jurisdiction given was constructively limited to cases of a judiciary nature.
On motion of Mr. Rutledge, the words, “passed by the Legislature,” were struck out; and after the words, “United States,” were inserted, nem. con., the words, “and treaties made or which shall be made under their authority,” conformably to a preceding amendment in another place.
The clause, “in cases of impeachment,” was postponed.
Mr. Gouverneur Morris wished to know what was meant by the words, “In all the cases before mentioned it [jurisdiction] shall be appellate, with such exceptions, &c.”, — whether it extended to matters of fact as well as law, — and to cases of common law, as well as civil law.
Mr. Wilson. The Committee, he believed, meant facts as well as law, and common as well as civil law. The jurisdiction of the Federal court of appeals had, he said, been so construed.
Mr. Dickinson moved to add, after the word “appellate,” the words, “both as to law and fact;” which was agreed to, nem. con.
Mr. Madison and Mr. Gouverneur Morris moved to strike out the beginning of the third section, “The jurisdiction of the Supreme Court,” and to insert the words, “the Judicial power,” which was agreed to, nem. con.
The following motion was disagreed to, to wit, to insert, “In all the other cases beforementioned, the judicial power shall be exercised in such manner as the Legislature shall direct.”
Delaware, Virginia, aye, — 2; New Hampshire, Connecticut, Pennsylvania, Maryland, South Carolina, Georgia, no, — 6.
On a question for striking out the last sentence of the third Section. “The Legislature may assign, &c.” it passed, nem. con.
Mr. Sherman moved to insert, after the words, “between citizens of different States,” the words, “between citizens of the same State claiming lands under grants of different states,” — according to the provision in the 9th Article of the Confederation; which was agreed to, nem. con.