"Reviving the American tradition of liberty"

The Debates in the Federal Convention of 1787

As Recorded by James Madison

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MONDAY  AUG^st 27^th, 1787 ¹  IN CONVENTION

Art X. Sect. 2. ² being resumed.

M^r. L. MARTIN moved to insert the words "after conviction" after the words "reprieves and pardons"

M^r. 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. —

M^r. L. MARTIN withdrew his motion.

M^r. 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. ³

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 M^r. GOV^r. MORRIS, who thought the Tribunal an improper one, particularly, if the first judge was to be of the privy Council.

M^r. GOV^r. MORRIS objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.

M^r. 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.

M^r. 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.

M^r. DICKINSON 2ded. the postponement, remarking that it was too vague. What is the extent of the term "disability" & who is to be the judge of it?

The postponement was agreed to nem: con:

Col: MASON & M^r. 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."

M^r. 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. ⁴

Art: XI. ⁵ being ⁶ taken up.

DOC^r. 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.

M^r. 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. ⁷

On the question to agree to Sect. 1. art. XI. as amended. ⁸

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.

M^r. DICKINSON moved as an amendment to sect. 2. art XI ⁵ 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."

M^r. GERRY 2ded. the motion

M^r. GOV^r. 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.

M^r. SHERMAN saw no contradiction or impropriety if this were made part of the constitutional regulation of the Judiciary establishment. He observed that a like provision was contained in the British Statutes.

M^r. RUTLIDGE. If the Supreme Court is to judge between the U. S. and particular States, this alone is an insuperable objection to the motion.

M^r. 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 every ⁹ gust of faction which might prevail in the two branches of our Govt.

M^r. RANDOLPH opposed the motion as weakening too much the independence of the Judges.

M^r. 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 ¹⁰

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.

On the question on Sect. 2. art: XI as reported. Del & Maryd. only no.

M^r. MADISON and M^r. M^c.HENRY moved to reinstate the words "increased or" before the word "diminished" in the 2d. sect. art XI.

M^r. GOV^r. 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.

Gen^l. 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 ¹¹ 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.

M^r. GOV^r. MORRIS said the expedient might be evaded & therefore amounted to nothing. Judges might resign, and then be reappointed 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 Mas. N. J. & N. C. ¹²

M^r. RANDOLPH & M^r. MADISON then moved to add the following words to sect. 2. art XI. "nor increased by any Act of the Legislature which shall operate before the expiration of three years after the passing thereof"

On this 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. ¹³

Sect. 3. art. XI ¹⁴ being taken up, the following clause 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.

M^r. MADISON & M^r. GOV^r. 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:

DOC^r. JOHNSON moved to insert the words "this Constitution and the" before the word "laws"

M^r. 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 M^r. 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. GOV^r. 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.

M^r. 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.

M^r. DICKINSON moved to add after the word "appellate" the words both as to law & fact which was agreed to nem: con:

M^r. MADISON & M^r. GOV^r. 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 before mentioned the Judicial power shall be exercised in such manner as the Legislature shall direct"

Del. Virga. ay ¹⁵

N. H Con. P. M. S. C. G no ¹⁶

On a question for striking out the last sentence of sect. 3.

"The Legislature may assign &c." ¹⁷

N. H. ay. Ct. ay. Pa. ay. Del. ay. Md. ay. Va. ay. S. C. ay. Geo. ay. ¹⁸

M^r. 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

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1. The year "1787" is omitted in the transcript.

2. See ante.

3. In the transcript the vote reads: "New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, Georgia, aye — 6; Delaware, South Carolina, no — 2; Massachusetts, New Jersey, North Carolina, absent."

4. In the transcript the vote reads: "New Hampshire, Connecticut, Pennsylvania, Maryland, Virginia, South Carolina, Georgia, aye — 7; Delaware, no, Massachusetts, New Jersey, North Carolina, absent."

5. See ante.

6. The word "next" is here inserted in the transcript.

7. In the transcript the vote reads: "New Hampshire, Connecticut, Pennsylvania, Virginia, South Carolina, Georgia, aye — 6; Delaware, Maryland, no — 2; Massachusetts, New Jersey, North Carolina, absent"

8. The transcript here inserts the following: "the States were the same as on the preceding question." The vote by States is omitted.

9. The word "any" is substituted in the transcript for "every."

10. The transcript here inserts the following: "it was negatived, Connecticut, aye; all the other States present, no." The vote by States is omitted.

11. The word "afford" is substituted in the transcript for "allow."

12. In the transcript the vote reads: "Virginia, aye — 1; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no — 5; Maryland, divided. Massachusetts, New Jersey, North Carolina, Georgia, absent."

13. In the transcript the vote reads: "Maryland, Virginia, aye — 2; New Hampshire, Connecticut, Pennsylvania, Delaware, South Carolina, no — 5; Massachusetts, New Jersey, North Carolina, Georgia, absent."

14. See ante.

15. The figure "2" is here inserted in the transcript.

16. The figure "6" is here inserted in the transcript.

17. The phrase "it" passed nem. con." is here added in the transcript.

18. The vote by States is omitted in the transcript.