The Great Debate That Made the U.S. Constitution. Madison James

be moved to-morrow, — whereupon Wednesday (the day after) was assigned to reconsider the amendment of Mr. Gerry.

      It was then moved & seconded to proceed to the consideration of the 9th resolution submitted by Mr. Randolph — when on motion to agree to the first clause namely "Resolved, that a National Judiciary be established," It passed in the affirmative nem. con.

      It was then moved & seconded to add these words to the first clause of the ninth resolution namely — "to consist of one supreme tribunal, and of one or more inferior tribunals," which passed in the affirmative.

      The Committee then rose and the House

      Adjourned.

1

      According to Pierce, King followed Wilson:

      "Mr. King was of opinion that the Judicial ought not to join in the negative of a Law, because the Judges will have the expounding of those Laws when they come before them; and they will no doubt stop the operation of such as shall appear repugnant to the Constitution." — Pierce's Notes, Am. Hist. Rev., iii., 322.

2

      Before the motion, according to King's notes:

      "Madison — The judiciary ought to be introduced in the business of Legislation — they will protect their department, and united with the Executive make its negatives more strong. There is weight in the objections to this measure — but a check on the Legislature is necessary, Experience proves it to be so, and teaches us that what has been thought a calumny on a republican Govt. is nevertheless true — In all Countries are diversity of Interests, the Rich & the Poor, the Dr. & Cr., the followers of different Demagogues, the Diversity of religious Sects — the Effects of these Divisions in Ancient Govts. are well known, and the like causes will now produce like effects. We must therefore introduce in our system Provisions against the measures of an interested majority — a check is not only necessary to protect the Executive power, but the minority in the Legislature. The independence of the Executive, having the Eyes of all upon him will make him an impartial judge — add the Judiciary, and you greatly increase his respectability."

      After the motion: "Dickinson opposed — You shd. separate the Departments — you have given the Executive a share in Legislation; and it is asked why not give a share to the judicial power. Because the Judges are to interpret the Laws, and therefore shd. have no share in making them — not so with the Executive whose causing the Laws to be Executed is a ministerial office only. Besides we have experienced in the Br. Constitution which confers the Power of a negative on the Executive." — King's Life and Correspondence of Rufus King, i., 592.

      Tuesday June 5. In Committee of the Whole

       Table of Contents

      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 Resolution 9th. 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 Legisl: Experience shewed 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. 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.

      Doctor 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 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 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, & a blank left to be hereafter filled on maturer reflection. Mr. Wilson second it. On the question for striking out, Massachusetts ay. Connecticut no. N. Y. ay. N. J. ay. Pennsylvania ay. Del. ay. Maryland ay. Virginia ay. N. C. ay. S. C. no. Geo. ay.

      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 guaranteeing to States Republican Government & territory" &c. being read Mr. Patterson1 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 against it.

      Propos. 12 "for continuing Congress till a given day and for fulfilling their engagements," produced no debate.

On the question, Mass. ay. Connecticut no. N. Y. ay. N. J.2 ay. Pa. ay. Del. no. Maryland ay. Virginia ay. N. C. ay. S. C. ay. G. ay.

      Propos: 13. "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. 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 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, Mas: Con. N. Y. Pennsylvania Del. Ma. N. C. ay. Virginia S. C. Geo. no.

      Propos. 14. "requiring oath