University of Virginia Library

Monday Augst. 27th. 1787. in Convention

Art X. Sect 2. being resumed,

Mr. L. Martin moved to insert the words "after
conviction" after the words "reprieves and pardons."

Mr. Wilson objected that pardon before conviction
might be necessary in order to obtain the testimony
of accomplices. He stated the case of forgeries in
which this might particularly happen.—Mr. L. Martin
withdrew his motion.

Mr. Sherman moved to amend the clause giving
the Executive the command of the Militia, so as to
read "and of the Militia of the several States, when
called into the actual service of the U. S." and on the
Question N. H. ay. Mas. abst. Ct. ay. N. J. abst.

Pa. ay. Del. no. Md. ay. Va. ay. N. C. abst. S. C.
no. Geo. ay.

The clause for removing the President on impeachment
by the House of Reps. and conviction in
the supreme Court, of Treason, Bribery or corruption,
was postponed nem: con: at the instance of Mr.
Govr. Morris, who thought the Tribunal an improper
one, particularly, if the first Judge was to be of the
privy Council.

Mr. Govr. Morris objected also to the President of
the Senate being provisional successor to the President,
and suggested a designation of the Chief Justice.

Mr. Madison added as a ground of objection that
the Senate might retard the appointment of a
President in order to carry points whilst the revisionary
power was in the President of their own
body, but suggested that the Executive powers
during a vacancy, be administered by the persons
composing the Council to the President.

Mr. Williamson suggested that the Legislature
ought to have power to provide for occasional successors,
& moved that the last clause (of 2 sect. X
art:) relating to a provisional successor to the President,
be postponed.

Mr. Dickinson 2ded. the postponement, remarking
that it was too vague. What is the extent of the
term "disability" and who is to be the judge of it?

The postponement was agreed to nem: con:

Col: Mason & Mr. Madison moved to add to the
oath to be taken by the supreme Executive "and

will to the best of my judgment and power preserve
protect and defend the Constitution of the U. S."

Mr. Wilson thought the general provision for oaths
of office, in a subsequent place, rendered the amendment
unnecessary.—

On the question

N. H. ay. Mas. abst. Ct. ay. Pa. ay. Del. no.
Md. ay. Va. ay. N. C. abst. S. C. ay. Geo. ay.

Art: XI. being taken up.

Docr. Johnson suggested that the judicial power
ought to extend to equity as well as law—and moved
to insert the words, "both in law and equity" after
the words "U. S" in the 1st. line of sect 1.

Mr. Read objected to vesting these powers in the
same Court.

On the question

N. H. ay. Mas. absent Ct. ay. N. J. abst P.
ay. Del. no. Md. no. Virga. ay. N. C. abst. S. C.
ay. Geo. ay.

On the question to agree to Sect. 1. art. XI, as
amended

N. H. ay. Mas. abst. Ct. ay. Pa. ay. N. J. abst.
Del. no. Md. no. Va. ay. N. C. abst. S. C. ay.
Geo. ay.

Mr. Dickinson moved as an amendment to sect. 2.
art XI after the words "good behavior" the words.
" provided that they may be removed by the Executive
on the application by the Senate and House
of Representatives."

Mr. Gerry 2ded. the motion

Mr. Govr. Morris thought it a contradiction in

terms to say that the Judges should hold their
offices during good behavior, and yet be removeable
without a trial. Besides it was fundamentally
wrong to subject Judges to so arbitrary an authority.

Mr. Sherman saw no contradiction or impropriety
if this were made a part of the Constitutional regulation
of the Judiciary establishment. He observed
that a like provision was contained in the British
Statutes.

Mr. Rutlidge. If the Supreme Court is to judge
between the U. S. and particular States, this alone
is an insuperable objection to the motion.

Mr. Wilson considered such a provision in the
British Government as less dangerous than here, the
House of Lords & House of Commons being less
likely to concur on the same occasions. Chief Justice
Holt, he remarked, had successively offended by
his independent conduct, both houses of Parliament.
Had this happened at the same time, he would have
been ousted. The Judges would be in a bad situation
if made to depend on any gust of faction which
might prevail in the two branches of our Govt.

Mr. Randolph opposed the motion as weakening
too much the independence of the Judges.

Mr. Dickinson was not apprehensive that the Legislature
composed of different branches constructed
on such different principles, would improperly unite
for the purpose of displacing a Judge.

On the question for agreeing to Mr. Dickinson's
Motion

N. H. no. Mas. abst. Ct. ay. N. J. abst. Pa. no.
Del. no. Md. no. Va. no. N. C. abst. S. C. no.
Geo. no.

Mr. Madison and Mr. Mc.Henry moved to reinstate
the words "increased or" before the word "diminished"
in 2d. sect, art XI.

Mr. Govr. Morris opposed it for reasons urged by
him on a former occasion—

Col: Mason contended strenuously for the motion.
There was no weight he said in the argument drawn
from changes in the value of the metals, because
this might be provided for by an increase of salaries
so made as not to affect persons in office, and this
was the only argument on which much stress seemed
to have been laid.

Genl. Pinkney. The importance of the Judiciary
will require men of the first talents: large salaries
will therefore be necessary, larger than the U. S. can
allow in the first instance. He was not satisfied
with the expedient mentioned by Col: Mason. He
did not think it would have a good effect or a good
appearance, for new Judges to come in with higher
salaries than the old ones.

Mr. Govr. Morris said the expedient might be
evaded & therefore amounted to nothing. Judges
might resign, & then be re-appointed to increased
salaries.

On the question

N. H. no. Ct. no. Pa. no. Del. no. Md. divd.
Va. ay. S. C. no. Geo. abst. also Masts. & N. J. &
N. C.

Mr. Randolph & Mr. Madison then moved to add
the following words to art XI. sect. 2. "nor increased
by any Act of the Legislature which shall
operate before the expiration of three years after
the passing thereof"

On the question

N. H. no. Ct. no. Pa. no. Del. no. Md. ay. Va.
ay. S. C. no. Geo. abst. also Mas. N. J. & N. C.

Sect. 3. art. XI. being taken up, the following
cause was postponed viz, "to the trial of impeachments
of officers of the U. S." by which the jurisdiction
of the supreme Court was extended to such
cases.

Mr. Madison & Mr. Govr. Morris moved to insert
after the word "controversies" the words "to which
the U. S. shall be a party," which was agreed to
nem: con:

Docr. Johnson moved to insert the words "this
Constitution and the" before the word "laws"

Mr. Madison doubted whether it was not going too
far to extend the jurisdiction of the Court generally
to cases arising under the Constitution & whether it
ought not to be limited to cases of a Judiciary Nature.
The right of expounding the Constitution in
cases not of this nature ought not to be given to
that Department.

The motion of Docr. Johnson was agreed to nem:
con: it being generally supposed that the jurisdiction
given was constructively limited to cases of a
Judiciary nature.

On motion of Mr. Rutlidge the words "passed by

the Legislature" were struck out, and after the
words "U. S" were inserted nem. con: the words
"and treaties made or which shall be made under
their authority" conformably to a preceding amendment
in another place.

The clause "in cases of impeachment," was postponed.

Mr. Govr. Morris wished to know what was meant
by the words "In all the cases before-mentioned it
(jurisdiction) shall be appellate with such exceptions
&c," whether it extended to matters of fact as
well as law—and to cases of common law as well as
civil law.

Mr. Wilson. The Committee he believed meant
facts as well as law & Common as well as Civil law.
The jurisdiction of the federal Court of Appeals had
he said been so construed.

Mr. Dickinson moved to add after the word "appellate
"the words "both as to law & fact which was
agreed to nem: con:

Mr. Madison & Mr. Govr. Morris moved to strike out;
the beginning of the 3d. sect. "The jurisdiction of
the supreme Court" & to insert the words "the Judicial
power" which was agreed to nem: con:

The following motion was disagreed to, to wit to
insert "In all the other cases beforementioned the
Judicial power shall be exercised in such manner as
the Legislature shall direct" Del. Virga. ay N. H
Con. P. M. S. C. G. no

On a question for striking out the last sentence of
of the sect. 3. "The Legislature may assign &c."

N. H. ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va.
ay. S. C. ay. Geo. ay.

Mr. Sherman moved to insert after the words "between
Citizens of different States" the words, "between
Citizens of the same State claiming lands under
grants of different States"—according to the provision
in the 9th Art: of the Confederation—which
was agreed to nem: con:

Adjourned