|Notes on the Debates in the Federal Convention
By James Madison
June 5, 1787
Tuesday June 5, 1787
IN COMMITTEE OF THE WHOLE
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. The
Clause- "that the National Judiciary be chose by the National Legislature," being under consideration.
Mr. WILSON opposed the appointment of Judges by the National Legislature. Experience showed 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.
Dr. FRANKLIN observed that two modes of choosing 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 enough 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, and a blank left to be hereafter filled on maturer
Mr. WILSON seconds it.
On the question for striking out. Massachusetts, aye. Connecticut, no. New York aye. New Jersey, aye. Pennsylvania, aye.
Delaware, aye. Maryland, aye. North Carolina, aye. South Carolina, no. Georgia, aye.
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 Legislature."
The following clauses of Resolution 9, were agreed to viz "to hold their offices during good behavior, 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 United States, whether from a voluntary junction of Government and territory, or otherwise, with the consent of a
number of voices in the National Legislature less than the whole.
The 11th proposal, "for guaranteeing to States a Republican Government. and territory, etc., 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 and South Carolina only voting against it. Proposition 12 "for
continuing Congress till a given day and for fulfilling their engagements," produced no debate.
On the question, Massachusetts, aye. Connecticut, no. New York, aye. New Jersey, aye. Pennsylvania, ay. Delaware, no.
Maryland, aye. Virginia, aye. North Carolina, aye. South Carolina, aye. Georgia, aye.
Proposition 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 and 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, Massachusetts, Connecticut, New York.
Pennsylvania, Delaware, Maryland, North Carolina, aye. Virginia, South Carolina, and Georgia, no.
Proposition 14, "requiring oath from the State officers to support National Government." was postponed after a short
The votes, Connecticut, New Jersey, Md. Virginia, South Carolina, and Georgia, aye. New York, Pennsylvania, Delaware,
North Carolina, no. Massachusetts, divided.
Proposition 15, for "recommending Conventions under appointment of the people to ratify the new Constitution" etc., being
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 through it, than through 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 Government.
The Proposition 15 was postponed nem. cont.
Mr. PINKNEY and Mr. RUTLIDGE moved that tomorrow be assigned to reconsider that clause of Proposition 4, which
respects the election of the first branch of the National Legislature -which passed in affirmative: Connecticut, New York,
Pennsylvania, Delaware, divided. Virginia, aye. Ayes,6. Massachusetts, New Jersey, North Carolina, South Carolina, Georgia,
Mr. RUTLIDGE having 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 proposition 9 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 and uniformity of Judgments. 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 biased 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, though' 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 and 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, and 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 tribunals"
Massachusetts, divided. Connecticut, aye. New York, divided. New Jersey, aye. Pennsylvania, no. Deleware, no. Maryland,
no. Virginia, no. North Carolina, aye. South Carolina, aye. Geogia, aye.
Mr. WILSON and Mr. MADISON then moved, in pursuance of the idea expressed above by Mr. Dickinson, to add to
Resolution 9, 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 Government he could devise; but the best they would receive.
Mr. KING remarked as to the comparative expense 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. Wilson and Mr. Madison, Massachusetts, aye. Connecticut, no. New York, divided. New
Jersey, aye. Pennsylvania, aye. Delaware, aye. Maryland, aye. Virginia, ay. North Carolina, aye. South Carolina, no. Georgia,
The Committee then rose & the House adjourned to 11 O’clock tomorrow.
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