The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
 |
 |
Wednesday July 18. In Convention. |
 | The writings of James Madison, |  |
Wednesday July 18. In Convention.
On motion of Mr. L. Martin to fix tomorrow for reconsidering
the vote concerning "eligibility of the
Exective. a 2d. time" it passed in the affirmative.
Mas. ay. Cont. ay. N. J. absent. Pa. ay. Del.
absent.
The residue of the Resol. 9. concerning the Executive
was postpd. till tomorrow.
Resol. 10. that Executive sh1. have a right to negative
legislative acts not afterwards passed by 2/3 of
each branch, agreed to nem. con.
Resol. 11. "that a Nat1. Judiciary shall be estabd. to
consist of one supreme tribunal," agd. to nem. con.
"The judges of which to be appointd. by the 2d.
branch of the Natl. Legislature,"
Mr. Ghorum, wd. prefer an appointment by the 2d.
branch to an appointmt. 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 Execuve. with the advice & consent of the 2d.
branch, in the mode prescribed by the constitution of
Masts. This mode had been long practised in that
country, & was found to answer perfectly well.
Mr. Wilson, still wd. prefer an appointmt. by the Executive;
but if that could not be attained, wd. 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 2ded. the motion.
Mr. L. Martin was strenuous for an appt. by the 2d.
branch. Being taken from all the States it wd. be
best informed of characters & most capable of making
a fit choice.
Mr. Sherman concurred in the observations of Mr.
which would be more likely to be attended to by the
2d. 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 agst. referring the
appointment to the Executive. He mentioned as
one, that as the Seat of Govt. must be in some one
State, and as the Executive would remain in office
for a considerable time, for 4. 5. or 6 years at least, he
would insensibly form local & 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 Govt. where they reside, as the
Executive. If they cannot 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 & cabal. Rh. 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
& cabal.
Mr. Govr. Morris supposed it would be improper for
an impeachmt. 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 wd. be much
about the Seat of Govt. they might even be previously
consulted & 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 agst. 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 2d. branch. This would unite the
advantage of responsibility in the Executive with
the security afforded in the 2d. branch agst. 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 appt. of
the Judges was vested in the 2d. branch an equality
of votes had not been given to it. Yet he had
rather leave the appointmt. there than give it to the
Executive. He thought the advantage of personal
the respective votes of the members to be entered
on the Journal. He thought too that the hope
of receiving appts. would be more diffusive if they
depended on the Senate, the members of which wd.
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 agst.
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 candidate
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 2d. branch
Mas. ay. Cont. no. Pa. ay. Del. no. Md. no.
Va. no. N. C. no. S. C. no. Geo. absent.
Mr. Ghorum moved "that the Judges be nominated
and appointed by the Executive, by & with the
advice & consent of the 2d. branch & every such nomination
shall be made at least—days prior to such
appointment." This mode he said had been ratified
by the experience of a 140 years in Massachusts.. If
the appt. should be left to either branch of the Legislature,
it will be a mere piece of jobbing.
Mr. Govr. Morris 2ded. & 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
Mas. ay. Cont. no. Pa. ay. Del. no. Md. ay. Va.
ay. N. C. no. S. C. no. Geo. absent.
Mr. Madison moved that the Judges should be
nominated by the Executive & such nomination
should become an appointment if not disagreed to
within—days by 2/3 of the 2d. branch.
Mr. Govr. Morris 2ded. the motion. By com̃on consent
the consideration of it was postponed till tomorrow.
"To hold their offices during good behavior" &
" 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.
Docr. 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
be suffered, if it can be prevented. The variations
in the value of money, may be guarded agst. 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 easily be 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 & 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
ought not to be prohibited.
On the question for striking out "or increase"
Mas. ay. Cont. ay. Pa. ay. Del. ay. Md. ay.
Va. no. N. C. no. S. C. ay. Geo. absent
The whole clause as amended was then agreed to
nem: con:
12. Resol: "that Nat1. 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
& 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 &c.
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 Nat1. 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 & 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
such a power absolutely necessary.
On question for agreeing to 12. Resol: empowering
the National Legislature to appoint "inferior
tribunals," Agd. to nem. con.
"Impeachments of national officers," were struck
out on motion for the purpose.
13. Resol:" The jurisdiction of the Natl. Judiciary."
Several criticisms having been made on the definition;
it was proposed by Mr. Madison so to alter it as
to read thus—"that the jurisdiction shall extend to
all cases arising under the Nat1. laws; And to such
other questions as may involve the Nat1. peace &
harmony," which was agreed to, nem. con.
Resol. 14. providing for the admission of new
States agreed to, nem. con.
Resol. 15. that provision ought to be made for the
continuance of Congs. &c. & for the completion of
their engagements."
Mr. Govr. Morris thought the assumption of their
engagements might as well be omitted; and that
Congs. 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 Govt. and the commencement
of its operation, if the old Govt. 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
Congs. 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
Governt. under which they were contracted.
On the question on the 1st. part—relating to the
continuance of Congs.
Mas. no. Cont. no. Pa. no. Del. no. Md. no.
Va. ay. N. C. ay. S. C.[132]
ay. Geo. no.
The 2d. part as to completion of their engagements,
disagd. to, nem. con.
Resol. 16. "That a Republican Constitution &
its existing laws ought to be guaranteed to each
State by the U. States."
Mr. Govr. Morris, thought the Resol: very objectionable.
He should be very unwilling that such laws as
exist in R. Island should be guaranteed.
Mr. Wilson. The object is merely to secure the
States agst. dangerous commotions, insurrections and
rebellions.
Col. Mason. If the Genl. Govt. should have no
right to suppress rebellions agst. particular States, it
will be in a bad situation indeed. As Rebellions agst.
itself originate in & agst. individual States, it must
remain a passive Spectator of its own subversion.
Mr. Randolph. The Resoln. has 2. objects. 1. to
secure a Republican Government. 2. to suppress
both these provisions.
Mr. Madison moved to substitute "that the Constitutional
authority of the States shall be guaranteed
to them respectively agst. domestic as well as
foreign violence."
Docr. McClurg 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
& amended. It may also be difficult for the Genl.
Govt. 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
Genl. Govt. shd. 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 partizans from all quarters,
might extend his views from State to State, and
threaten to establish a tyranny over the whole & the
Genl. Govt. 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 Genl.
Govt. & to each other. If they appeal to the sword,
it will then be necessary for the Genl. Govt., however
difficult it may be to decide on the merits of their
contest, to interpose & 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 an amendt. to the
motion; "and that no State be at liberty to form any
other than a Republican Govt. "Mr. Madison seconded
the motion.
Mr. Rutlidge thought it unnecessary to insert any
guarantee. No doubt could be entertained but that
Congs. had the authority if they had the means to
co-operate with any State in subduing a rebellion.
It was & would be involved in the nature of the
thing.
Mr. Wilson moved as a better expression of the
idea, "that a Republican form of Governmt. shall be
guaranteed to each State & that each State shall be
protected agst. foreign & domestic violence.
This seeming to be well received, Mr. Madison &
Mr. Randolph withdrew their propositions & on the
Question for agreeing to Mr. Wilson's motion, it
passed nem. con.
Adjd.
| The writings of James Madison, | |