M^r 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 2^d branch
Mas. ay. Con^t no. P^a ay. Del. no. M^d no. V^a no. N. C. no.
S. C. no. Geo. absent.
M^r Ghorum moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2^d 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 Ma.s.sachus^{ts}. If the app^t should be left to either branch of the Legislature, it will be a mere piece of jobbing.
M^r Gov^r Morris 2^{ded} & supported the motion.
M^r Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it, as too much fettering the Senate.
Question on M^r Ghorum"s motion
Mas. ay. Con^t no. P^a ay. Del. no. M^d ay. V^a ay. N. C. no.
S. C. no. Geo. absent.
M^r 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 2^d branch.
M^r Gov^r Morris 2^{ded} the motion. By co[~m]on 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."
M^r Gov^r Morris moved to strike out "or increase." He thought the Legislature ought to be at liberty to increase salaries as circ.u.mstances might require, and that this would not create any improper dependence in the Judges.
Doc^r 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.
M^r 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 ag^{st} 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.
M^r Gov^r Morris. The value of money may not only alter but the State of Society may alter. In this event the same quant.i.ty 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 additional business. Additional compensation therefore ought not to be prohibited.
On the question for striking out "or increase"
Mas. ay. Con^t ay. P^a ay. Del. ay. M^d ay. V^a no. N. C. no.
S. C. ay. Geo. absent
The whole clause as amended was then agreed to nem: con:
12. Resol: "that Nat^l Legislature be empowered to appoint inferior tribunals"
M^r Butler could see no necessity for such tribunals. The State Tribunals might do the business.
M^r L. Martin concurred. They will create jealousies & oppositions in the State tribunals, with the jurisdiction of which they will interfere.
M^r 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 Nat^l Legislature effectual.
M^r 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.
M^r Gov^r Morris urged also the necessity of such a provision.
M^r 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 circ.u.mstances might arise not now to be foreseen, which might render such a power absolutely necessary.
On question for agreeing to 12. Resol: empowering the National Legislature to appoint "inferior tribunals," Ag^d to nem. con.
"Impeachments of national officers," were struck out on motion for the purpose.
13. Resol: "The jurisdiction of the Nat^l Judiciary." Several criticisms having been made on the definition; it was proposed by M^r Madison so to alter it as to read thus--"that the jurisdiction shall extend to all cases arising under the Nat^l laws; And to such other questions as may involve the Nat^l 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 Cong^s &c. & for the completion of their engagements."
M^r Gov^r Morris thought the a.s.sumption of their engagements might as well be omitted; and that Cong^s 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.
M^r 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 Gov^t and the commencement of its operation, if the old Gov^t should cease on the first of these events.
M^r Wilson did not entirely approve of the manner in which the clause relating to the engagements of Cong^s 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 Govern^t under which they were contracted.
On the question on the 1^{st} part--relating to the continuance of Cong^s.
Mas. no. Con^t no. P^a no. Del. no. M^d no. V^a ay. N. C. ay.
S. C.[138] ay. Geo. no.
[138] In the printed Journal, S. Carolina--no. Note in Madison"s hand.
The 2^d part as to completion of their engagements, disag^d to, nem.
con.
Resol. 16. "That a Republican Const.i.tution & its existing laws ought to be guaranteed to each State by the U. States."
M^r Gov^r Morris, thought the Resol: very objectionable. He should be very unwilling that such laws as exist in R. Island should be guaranteed.
M^r Wilson. The object is merely to secure the States ag^{st} dangerous commotions, insurrections and rebellions.
Col. Mason. If the Gen^l Gov^t should have no right to suppress rebellions ag^{st} particular States, it will be in a bad situation indeed. As Rebellions ag^{st} itself originate in & ag^{st} individual States, it must remain a pa.s.sive Spectator of its own subversion.
M^r Randolph. The Resol^n has 2. objects. 1. to secure a Republican Government. 2. to suppress domestic commotions. He urged the necessity of both these provisions.