|Notes on the Debates in the Federal Convention
By James Madison
July 18, 1787
Wednesday July 18, 1787
On motion of Mr. L. Martin to fix tomorrow for reconsidering the vote concerning "eligibility of Executive a 2nd time" it
passed in the affirmative.
Massachusetts, aye. Connecticut, aye. New Jersey, absent. Pennsylvania, aye. Delaware, aye. Maryland, aye. Virginia, aye.
North Carolina, aye. South Carolina, aye. Georgia, absent.
The residue of Resolution 9, concerning the Executive was postponed till tomorrow.
Resolution 10, that Executive should have a right to negative legislative acts not afterwards passed by 2/3 of each branch.
Agreed to nem con.
Resolution 11 "that a National Judiciary be established to consist of one supreme tribunal." agreed to nem con. "The Judges of
which to be appointed by the 2nd branch of the National Legislature."
Mr. GHORUM, Would prefer an appointment by the 2nd branch to an appointment by the whole Legislature; but he thought
even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be
appointed by the Executive with the advice and consent of the 2nd branch, in the mode prescribed by the constitution of
Massachusetts. This mode had been long practiced in that country, and was found to answer perfectly well.
Mr. WILSON, still would prefer an appointment by the Executive; but if that could not be attained, would prefer in the next
place, the mode suggested by Mr. Ghorum. He thought it his duty however to move in the first instance "that the Judges be
appointed by the Executive." Mr. Govr. MORRIS 2nded the motion.
Mr. L. MARTIN was strenuous for an appointment by the 2nd branch; Being taken from all the States it would be best
informed of characters and most capable of making a fit choice.
Mr. SHERMAN concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be
more likely to be attended to by the 2nd branch, than by the Executive.
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 the Executive would remain in office for a considerable time, for 4, 5, or
6 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. GHORUM. 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 can not 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. Govr. 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 1/3 at least, of the
2nd branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2nd 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 2nd 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. GHORUM 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 Candidates resided. The Executive would certainly
be more answerable for a good appointment, as the whole blame of a bad one would fall 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 2nd branch;
Massachusetts, aye. Connecticut, no. Pennsylvania, aye. Delaware, no. Maryland, no. Virginia, no. North Carolina, no. South
Carolina, no. Georgia, absent.
Mr. GHORUM moved "that the Judges be nominated and appointed by the Executive by and with the advice and consent of
the 2nd 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 140 years in Massachusetts. If the appointment should be left to either branch of the
Legislature, it will be a mere piece of jobbing.
Mr. Govr. MORRIS 2nded 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.
Question on Mr. Ghorum's motion;
Massachusetts, aye. Connecticut, no. Pennsylvania, aye. Delaware, no. Maryland, aye. Virginia, aye. North Carolina, no.
South Carolina, no. 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 2/3 of the 2nd branch. Mr. Govr. MORRIS 2nded the motion. By
common consent the consideration of it was postponed till tomorrow.
"To hold their offices during good behavior" 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 at the time in office."
Mr. Govr. 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.
Dr. 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 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 be easily so contrived as not to affect persons in office.
Mr. Govr. 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 can not, 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, aye. Connecticut, aye. Pennsylvania, aye. Delaware, aye. Maryland, aye. Virginia, no. North Carolina, no.
South Carolina, ay. Georgia, absent.
The whole clause as amended was then agreed to nem con.
Resolution 12. "that National Legislature be empowered to appoint inferior tribunals".
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. GHORUM. There are in the States already federal Courts with jurisdiction for trial of piracies, etc., 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 can not 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. Govr. 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
On question for agreeing to 12 Resolution, empowering the National Legislature to appoint "inferior tribunals." Agreed to nem
Resolution 13: "Impeachments of national officers" were struck out on motion for the purpose. "The jurisdiction of National
Judiciary." Several criticisms having been made on the definition; it was proposed by Mr. Madison so to alter 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.
Resolution 14, providing for the admission of new States. Agreed to nem con.
Resolution 15, that provision ought to be made for the continuance of Congress, etc., and for the completion of their
Mr. Govr. 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 1st part; relating to continuance of Congress."
Massachusetts, no. Connecticut, no. Pennsylvania, no. Delaware, no. Maryland, no. Virginia, aye. North Carolina, aye. South
Carolina, aye. Georgia, no.
The 2nd part as to completion of their engagements, disagreed, to, nem con.
Resolution 16. "That a Republican Constitution and its existing laws ought to be guaranteed to each State by the United States."
Mr. Govr. 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. 1. To secure Republican Government. 2. 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."
Dr. Mc CLURG 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. GHORUM thought it strange that a Rebellion should be known to exist in the Empire, and the General Govt. 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 partisans 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. CARROL. Some such provision is essential. Every State ought to wish for it. It has been doubted whether it is a casus
federis at present. And no room ought to be left for such a doubt hereafter.
Mr. RANDOLPH moved to add as amendment to the motion; "and that no State be at liberty to form any other than a
Mr. MADISON seconded the motion.
Mr. RUTLIDGE thought it unnecessary to insert any guarantee. No doubt could be entertained but that Congress had the
authority if they had the means to cooperate 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.
This seeming to be well received, Mr. MADISON & Mr. RANDOLPH withdrew their propositions and on the Question for
agreeing to Mr. Wilson's motion, it passed nem con.
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