The Debates in the
Federal Convention of 1787
JUNE 5. IN
GOVERNOR Livingston from 1
New Jersey, took his seat.
The words, "one or more" were struck out before "inferior
tribunals" as an amendment to the last clause of Resoln. 9th 2
The Clause — "that the National Judiciary be chose by the National
Legislature," being under consideration.
Mr. WILSON opposed the appointmt. of
Judges by the National Legisl: Experience shewed the impropriety of such
appointmts. 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.
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 practiced 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 seconds it.
On the question for striking out. Massts. ay. Cont. no. N.Y. ay. N.J. ay.
Pena.ay. Del. Ay. Md. ay. N.C. ay. S.C.no. Geo.ay. 3
Mr. WILSON gave notice that he should at
a future day move for a reconsideration of the clause which respects "inferior
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
The following clauses of Resol: 9. 4
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. 5
Resolution 10 6 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: 7 "for
guarantying to States Republican Govt. & territory &c., being read,
Mr. PATTERSON 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 agst. it.
8 "for continuing Congs. till a
given day and for fulfilling their engagements," produced no debate.
On the question, Mass. ay. Cont. no. N. Y. ay. N. J. *9
ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. G. ay.
Propos: 13. 10 "that
provision ought to be made for hereafter amending the system now to be
established, without requiring the assent of the Natl. 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 Govt. 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. Pa. Del. Ma. N. C. — ay Virga. S. C. Geo: no
Propos. 14. 11 "requiring
oath from the State officers to support National Govt." was postponed
after a short uninteresting conversation: the votes, Con. N. Jersey. Md. Virga.:
S. C. Geo. ay N. Y. Pa. Del. N. C. — no Massachusetts — divided.
Propos. 15 12 for "recommending
Conventions under appointment of the people to ratify the new Constitution"
&c. being taken up.
Mr. SHARMAN thought such a popular
ratification unnecessary: the articles of Confederation providing for changes
and alterations with the assent of Congs. and ratification of State
Mr. MADISON thought this provision
essential. The articles of Confedn. 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 Congs. 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 Confedn. 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 Massts. and giving all the other powers of Govt. to the other
branch of the Legislature.
Mr. KING supposed that the last article
of ye Confedn. 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 they be well employed.
Mr. WILSON took this occasion to lead
the Committee by a train of observations to the idea of not suffering a
disposition in the plurality of States to confederate anew on better principles,
to be defeated by the inconsiderate or selfish opposition of a few States. He
hoped the provision for ratifying would be put on such a footing as to admit of
such a partial union, with a door open for the accession of the rest.
Mr. PINKNEY hoped that in case the
experiment should not unanimously take place nine States might be authorized to
unite under the same Governt.
The propos. 15. 15 was postponed nem.
Mr. PINKNEY & Mr. RUTLIDGE moved that tomorrow be assigned to reconsider that
clause of Propos. 4:
16 which respects the election of the
first branch of the National Legislature — which passed in
17 affirmative: Con: N. Y. Pa. Del: d.
Va. — ay — 6 Mas. N. J. N. C. S. C. Geo. no. 5.
Mr. RUTLIDGE havg. obtained a rule for
reconsideration of the clause for establishing inferior tribunals under
the national authority, now moved that that part of the clause in propos. 9.
18 should be expunged: arguing that the
State Tribunals might and ought to be left in all cases to decide in the first
instance the right of appeal to the supreme national tribunal being sufficient
to secure the national rights & uniformity of Judgmts.: that it was making
an unnecessary encroachment on the jurisdiction of the States and creating
unnecessary obstacles to their adoption of the new system.
Mr. SHERMAN 2ded. the motion.
Mr. MADISON observed that unless
inferior tribunals were dispersed throughout the Republic with final
jurisdiction in many cases, appeals would be multiplied to a most
oppressive degree; that besides, an appeal would not in many cases be a remedy.
What was to be done after improper Verdicts in State tribunals obtained under
the biassed directions of a dependent Judge, or the local prejudices of an
undirected jury? To remand the cause for a new trial would answer no purpose. To
order a new trial at the Supreme bar would oblige the parties to bring up their
witnesses, tho' ever so distant from the seat of the Court. An effective
Judiciary establishment commensurate to the legislative authority, was
essential. A Government without a proper Executive & Judiciary would be the
mere trunk of a body, without arms or legs to act or move.
Mr. WILSON opposed the motion on like
grounds. he said the admiralty jurisdiction ought to be given wholly to the
national Government, as it related to cases not within the jurisdiction of
particular states, & to a scene in which controversies with foreigners would
be most likely to happen.
Mr. SHERMAN was in favor of the motion. He dwelt
chiefly on the supposed expensiveness of having a new set of Courts, when the
existing State Courts would answer the same purpose. Mr. DICKINSON
contended strongly that if there was to be a National Legislature, there ought
to be a national Judiciary, and that the former ought to have authority to
institute the latter. On the question for Mr. Rutlidge's motion to strike out "inferior
Massts. divided. Cont. ay. N. Y. divd. N. J. ay. Pa. no. Del. no. Md. no.
Va. no. N. C. ay. S. C. ay. Geo. ay. 20
Mr. WILSON & Mr. MADISON then moved, in pursuance of the idea expressed above by
Mr. Dickinson, to add to Resol: 9. 21 the
words following "that the National Legislature be empowered to institute
inferior tribunals." They observed that there was a distinction between
establishing such tribunals absolutely, and giving a discretion to the
Legislature to establish or not establish them. They repeated the necessity of
some such provision.
Mr. BUTLER. The people will not bear
such innovations. The States will revolt at such encroachments. Supposing such
an establishment to be useful, we must not venture on it. We must follow the
example of Solon who gave the Athenians not the best Govt. he could devise; but
the best they wd. receive.
Mr. KING remarked as to the comparative
expence that the establishment of inferior tribunals wd. cost infinitely less
than the appeals that would be prevented by them.
On this question as moved by Mr. W. & Mr. M. Mass. ay. Ct. no. N. Y.
divd. N. J. *22 ay. Pa. ay. Del. ay. Md.
ay. Va. ay. N. C. ay. S. C. no. Geo. ay.
The Committee then rose & the House adjourned to 11 OC tomw.
1. The word "of" is substituted
in the transcript for "from."
2. The phrase "the ninth Resolution"
is used in the transcript in place of "Resoln. 9th."
3. In the transcript the vote reads: "Massachusetts,
New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North
Carolina, South Carolina, no, Georgia, aye — 9; Connecticut, South
Carolina, — 2."
4. The transcript uses the phrase "the
ninth Resolution" in place of "Resol: 9," and italicizes the
5. The transcript here uses the phrase "the
6. The phrase "The tenth Resolution"
is here used in the transcript.
7. In place of the words "The 11.
propos:" the transcript reads: "The eleventh Resolution."
8. The transcript changes "Propos. 12"
to "The twelfth Resolution."
*9. New Jersey omitted in the printed
10. The transcript changes "Propos:
13" to read as follows: "The thirteenth Resolution, to the effect."
11. The transcript changes "Propos.
14" to "The fourteenth Resolution."
12. The transcript changes "Propos.
15" to "The fifteenth Resolution."
*13. The note in brackets to be
transferred to bottom margin. 14
[This hint was probably meant in terrorem to the smaller States of N. Jersey &
Delaware. Nothing was said in reply to it.]
14. Madison's direction is omitted in the
15. The transcript changes "The
propos. 15" to "the fifteenth Resolution."
16. The transcript changes "Propos.
4" to "the fourth Resolution."
17. The word "the" is here
inserted in the transcript.
18. The transcript changes "propos.
9" to "the ninth Resolution."
19. The phrase "it passed in the
affirmative" is here inserted in the transcript.
20. In the transcript the vote reads: "Connecticut,
New York, New Jersey, North Carolina, South Carolina, Georgia, aye — 5;
Pennsylvania, Delaware, Maryland, Virginia, no — 4; Massachusetts, divided."
New York which was "divided" was erroneously placed among the "ayes"
in copying, although the number was correctly given as "5."
21. The transcript changes "Resol: 9"
to "the ninth Resolution."
*22. In the printed Journal N. Jersey —
23. The transcript omits the phrase "to
11 OC tomw."