The Formation & Evolution of the American Constitution. Madison James

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      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 from the State officers to support National Government" was postponed after a short uninteresting conversation: the votes.

      Con. N. Jersey Maryland Virg. S. C. Geo. ay. N. Y. Pennsylvania Del. N. C. no. Massachusetts divided.

      Propos. 15. 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 impliedly given 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 thro' it, than thro' 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 СКАЧАТЬ