The Formation & Evolution of the American Constitution. Madison James
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 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 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 Government & territory" &c. being read Mr. Patterson1 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 against it.
Propos. 12 "for continuing Congress till a given day and for fulfilling their engagements," produced no debate.
On the question, Mass. ay. Connecticut no. N. Y. ay. N. J.2 ay. Pa. ay. Del. no. Maryland ay. Virginia 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 National 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 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, Mas: Con. N. Y. Pennsylvania Del. Ma. N. C. ay. Virginia S. C. Geo. no.
Propos. 14. "requiring oath from the State officers to support National Government" was postponed after a short uninteresting conversation: the votes.
Con. N. Jersey Maryland Virg. S. C. Geo. ay. N. Y. Pennsylvania 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 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 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.3
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 propos. 15. was postponed nem. Connecticut.
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., Pennsylvania Del. Maryland, Virginia, ay. — 6 Mas.: N. J.: N. C.: S. C.: Geo.: no. 5.
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 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 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 seconded 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"
Massachusetts divided. Connecticut ay. N. Y. divd. N. J. ay. Pennsylvania no. Del. no. Maryland no. Virginia 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,