University of Virginia Library

Tuesday June 5. 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 Resoln 9th. The Clause—"that the National
Judiciary be chosen 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.

Docr. Franklin 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
practised 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
second it. On the question for striking out, Massts.
ay. Cont. no. N. Y. ay. N. J. ay. Pena. ay. Del. ay.
Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay.

Mr. Wilson gave notice that he should at a future
day move for a reconsideration of that clause which
respects "inferior tribunals."

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 Resol: 9. 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. was posponed.

Resolution 10 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: "for guaranteeing to States Republican
Govt. & territory" &c. being read Mr. Patterson[57]
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.

Propos. 12 "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.[58] ay. Pa. ay. Del. no. Md. ay. Va. ay. N. C.
ay. S. C. ay. G. ay.

Propos: 13. "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. "requiring oath from the State officers
to support National Govt." was postponed after a
short uninteresting conversation: the votes. Con.
N. Jersey Md. Virg. S. C. Geo. ay N. Y. Pa. Del.
N. C. no Massachusetts divided.

Propos. 15. for "recommending Conventions under
appointment of the people to ratify the new Constitution"
&c. being taken up,

Mr. Sherman thought such a popular ratification
unnecessary: the articles of Confederation providing
for changes and alterations with the assent of Congs.
and ratification of State Legislatures.

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
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.[59]

Mr. Pinkney hoped that in case the experiment
should not unanimously take place, nine States
might be authorized to unite under the same Governmt.

The propos. 15. was postponed nem. cont.

Mr. Pinkney & Mr. Rutlidge moved that to-morrow
be assigned to reconsider that clause of
Propos: 4: which respects the election of the first
branch of the National Legislature—which passed in
affirmative,—Con.: N. Y., Pa. Del. Md., 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 the propos. 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
& 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 tribunals"

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.

Mr. Wilson & Mr. Madison then moved, in pursuance
of the idea expressed above by Mr. Dickinson,
to add to the Resol: 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
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.[60] 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.