Journal of the Federal Convention June 13th 1787

Supreme Court Jurisdiction. Second branch to appoint Judges. Money bills to originate in first branch. Report of the Committee of the Whole on Randolph Plan.

The latter parts of the clause relating to the jurisdiction of the Natil. tribunals, was struck out nem. con in order to leave full room for their organization.

Mr. RANDOLPH & Mr. MADISON, then moved the following resolution respecting a National Judiciary, viz "that the jurisdiction of the National Judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony" which was agreed to.

Mr. PINKNEY & Mr. SHERMAN moved to insert after the words "one supreme tribunal" the words "the Judges of which to be appointed by the national Legislature."

Mr. MADISON, objected to an appt. by the whole Legislature. Many of them were [FN2] incompetent Judges of the requisite qualifications. They were too much influenced by their partialities. The candidate who was present, who had displayed a talent for business in the legislative field, who had perhaps assisted ignorant members in business of their own, or of their Constituents, or used other winning means, would without any of the essential qualifications for an expositor of the laws prevail over a competitor not having these recommendations, but possessed of every necessary accomplishment. He proposed that the appointment should be made by the Senate, which as a less numerous & more select body, would be more competent judges, and which was sufficiently numerous to justify such a confidence in them.

Mr. SHARMAN & Mr. PINKNEY withdrew their motion, and the appt. by the Senate was agd. to nem. con.

Mr. GERRY. moved to restrain the Senatorial branch from originating money bills. The other branch was more immediately the representatives of the people, and it was a maxim that the people ought to hold the purse-strings. If the Senate should be allowed to originate such bills, they wd. repeat the experiment, till chance should furnish a sett of representatives in the other branch who will fall into their snares.

Mr. BUTLER saw no reason for such a discrimination. We were always following the British Constitution when the reason of it did not apply. There was no analogy between the H. of Lords and the body proposed to be established. If the Senate should be degraded by any such discriminations, the best men would be apt to decline serving in it in favor of the other branch. And it will lead the latter into the practice of tacking other clauses to money bills.

Mr. MADISON observed that the Commentators on the Brit: Const: had not yet agreed on the reason of the restriction on the H. of L. in money bills. Certain it was there could be no similar reason in the case before us. The Senate would be the representatives of the people as well as the 1st. branch. If they sd. have any dangerous influence over it, they would easily prevail on some member of the latter to originate the bill they wished to be passed. As the Senate would be generally a more capable sett of men, it wd. be wrong to disable them from any preparation of the business, especially of that which was most important, and in our republics, worse prepared than any other. The Gentleman in pursuance of his principle ought to carry the restraint to the amendment, as well as the originating of money bills, since, an addition of a given sum wd. be equivalent to a distinct proposition of it.

Mr. KING differed from Mr. GERRY, and concurred in the objections to the proposition.

Mr. READ favored the proposition, but would not extend the restraint to the case of amendments.

Mr. PINKNEY thinks the question premature. If the Senate shd. be formed on the same proportional representation as it stands at present, they sd have equal power, otherwise if a different principle sd. be introduced.

Mr. SHERMAN. As both branches must concur, there can be no danger whichever way the Senate [FN3] be formed. We establish two branches in order to get more wisdom, which is particularly needed in the finance business-The Senate bear their share of the taxes, and are also the representatives of the people. What a man does by another, he does by himself is a maxim. In Cont. both branches can originate in all cases, and it has been found safe & convenient. Whatever might have been the reason of the rule as to The H. of Lords, it is clear that no good arises from it now even there.

Genl. PINKNEY. This distinction prevails in S. C. & has been a source of pernicious disputes between ye. 2 branches. The Constitution is now evaded, by informal schedules of amendments handed from ye. Senate to the other House.

Mr. WILLIAMSON wishes for a question chiefly to prevent re-discussion. The restriction will have one advantage, it will oblige some member in [FN4] lower branch to move, & people can then mark him.

On the question for excepting money bills as propd. by Mr. Gerry, Mass. no. Cont. no. N. Y. ay. N. J. no. Del. ay. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [FN5]

[FN6] Committee rose & Mr. GHORUM made report, which was postponed till tomorrow, to give an opportunity for other plans to be proposed. The report was in the words following:

1. Resd. that it is the opinion of this Committee that a National Governmt. ought to be established, consisting of a supreme Legislative, Executive & Judiciary.

3. Resd. that the members of the first branch of the National Legislature ought to be elected by the people of the several States for the term of three years, to receive fixed Stipends by which they may be compensated for the devotion of their time to [FN6] public service, to be paid out of the National Treasury: to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the first branch), during the term of service, and under the national Government for the space of one year after its expiration.

4. Resd. that the members of the second branch of the Natl. Legislature ought to be chosen by the individual Legislatures, to be of the age of 30 years at least, to hold their offices for a term sufficient to ensure their independency, [FN8] namely, seven years, to receive fixed stipends by which they may be compensated for the devotion of their time to [FN6] public service to be paid out of the National Treasury; to be ineligible to any office established by a particular State, or under the authority of the U. States, (except those peculiarly belonging to the functions of the second branch) during the term of service, and under the Natl. Govt. for the space of one year after its expiration.

6. Resd. that the Natl. Legislature ought to be empowered to enjoy the Legislative rights vested in Congs. by the Confederation, and moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.

7. Resd. that the rights of suffrage in the 1st. branch of the National Legislature, ought not to be according to the rule established in the articles of confederation but according to some equitable ratio of representation, namely, in proportion to the whole number of white & other free citizens & inhabitants, of every age sex and condition, including those bound to servitude for a term of years, & three fifths of all other persons, not comprehended in the foregoing description, except Indians not paying taxes in each State:

8. Resolved that the right of suffrage in the 2d. branch of the National Legislature ought to be according to the rule established for the first.

9. Resolved that a National Executive be instituted to consist of a single person, to be chosen by the Natil. Legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for-to be ineligible a second time, & to be removeable on impeachment and conviction of malpractices or neglect of duty-to receive a fixed stipend by which he may be compensated for the devotion of his time to [FN9] public service to be paid out of the national Treasury.

10. Resold. that the Natl. Executive shall have a right to negative any Legislative Act, which shall not be afterwards passed unless [FN10] by two thirds of each branch of the National Legislature.

11. Resold. that a Natl. Judiciary be established, to consist of one supreme tribunal, the Judges of which to [FN11] be appointed by the 2d. branch of the Natl. Legislature, to hold their offices during good behaviour, & 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.

12. Resold. that the Natl. Legislature be empowered to appoint inferior Tribunals.

13. Resd. that the jurisdiction of the Natl. Judiciary shall extend to all cases which respect the collection of the Natl. revenue, impeachments of any Natl. Officers, and questions which involve the national peace & harmony.

14. Resd. 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 Natl. Legislature less than the whole.

15. Resd. that provision ought to be made for the continuance of Congress and their authorities and privileges untill a given day after the reform of the articles of Union shall be adopted and for the completion of all their engagements.

16. Resd. that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States.

17. Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.

18. Resd. that the Legislative, Executive & Judiciary powers within the several States ought to be bound by oath to support the articles of Union.

19. Resd. that the amendments which shall be offered to the confederation by the Convention ought at a proper time or times after the approbation of Congs. to be submitted to an Assembly or Assemblies recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon.

FN1 The words "the ninth Resolution" are substituted in the transcript for "Resol: 9."

FN5 In the transcript the vote reads: "New York, Delaware, Virginia, aye-3; Massachusetts, Connecticut. New Jersey, Maryland, North Carolina, South Carolina, Georgia no-7."

In Committee of the Whole.

Governor Edmund Randolph and James Madison (VA) proposed to amend Resolution #9 to read, "that the jurisdiction of the National Judiciary shall extend to cases, which respect the collection of the national revenue, impeachments of any national officers, and questions which involve the national peace and harmony." It passed without objection.

(Robert Yates (NY) wrote that Resolution #9 was to establish a principle; a subcommittee would later provide details.)

Charles Pinckney (SC) and Roger Sherman (CN) motioned for National Legislative appointment of judges.

James Madison (VA) objected. Congress was not competent to appoint qualified men. (I think he meant the rabble in the House) They would offer men of business who helped members of Congress, their own members, and unqualified others. He submitted for consideration, appointment by the Senatorial branch.

Charles Pinckney (SC) and Roger Sherman (CN) withdrew their motion. Madison’s was accepted.

Elbridge Gerry (MA) wandered off topic to prevent the Senate from originating money bills. (Believe it or not, the issue of which branch could originate money bills would figure large in the upcoming battle over how many Senators would be allowed to each State.)

Pierce Butler (SC) stayed with Gerry to comment that it would be degrading if the Senate could not originate money bills. He predicted correctly, that the proposed rule would lead to the practice of amending money bills. He softly ridiculed the convention for following the British example when the example did not apply.

(See, it wasn’t only Hamilton who respected the monarchal British System. In fact, Mr. Yates quoted Mr. Gerry, “If we dislike the British government for the oppressive measures by them carried on against us, yet he hoped we would not be so far prejudiced as to make ours in every thing opposite to theirs.” Still, Monarchy would not do for Americans, it never had a chance.)

James Madison (VA) saw no reason to prevent the Senate from proposing money bills, as they would generally be a more capable set of men and still connected to the people.

Rufus King (MA) disagreed with his fellow MA delegate, Mr. Gerry.

Judge George Read (DE) did not object to amendments on money bills in the Senate.

Roger Sherman (CN) did not see why both houses could not produce money bills. He disputes any reason to emulate the practice of Parliament in the British House of Lords.

By 7-3, the Committee of the Whole voted against Elbridge Gerry (MA)’s proposal to prevent money bill origination in the Senate.

Nathaniel Gorham (MA) made report, postponed until tomorrow of Governor Randolph’s Resolutions

(What followed was the Randolph/Virginia plan as amended by the Committee of the Whole. Nathaniel Gorham, who chaired the Committee of the Whole was apparently charged to keep track of these amendments. What he submitted was called a “report,” a term that will be used throughout the convention.)

So, the report was submitted today but not debated. This was to give delegates time to digest them and consider other amendments, or new plans of government.

(Copies were given to the delegates. Remember the secrecy rule? No one violated their oaths and leaked the report to Philly newspapers. Probably thirty copies were now out and about. These were men of honor.)

(At this point I imagine Mr. Madison and the Large State supporters felt confident. Despite their losses on the Council of Revision and the election of Senators moved from the House of Representatives to the State Legislatures, the term of office of the Executive, the rest of the votes (not including the 6-5 vote on proportional representation in the Senate) were 7-3 or 7-4 and the vote was unanimous to send the Constitution for approval by new representatives “of the people.”)

(The Convention had come a long way in a short time. There was near consensus for a national government with a popularly elected House of Reps, a large injection of popular sovereignty.)

1. A government to consist of supreme legislative, executive and judiciary.

2. The legislature to consist of two branches.

3. House of Reps elected by the people for three year terms. They may hold no other offices during their service, nor for one year after.

4. Senators to be chosen by state legislatures to a term of seven years. Must be at least 30 years old. As in the House, they may not hold other offices during service, nor for one year after.

5. Each branch of the legislature may originate acts.

6. (Here is a bigee) The original: “That the Natl. Legislature ought to be empowered to enjoy the Legislative rights vested in Congs. by the Confederation, and moreover to legislate in all cases to which the separate States are incompetent; or in which the harmony of the U. S. may be interrupted by the exercise of individual legislation; to negative all laws passed by the several States contravening in the opinion of the National Legislature the articles of Union, or any treaties subsisting under the authority of the Union.”

(The paper powers of the Confederacy were to be transferred to a new government with power to enforce laws. To the powers of the Confederacy were added as yet un-enumerated powers, which would be elaborated in a subcommittee. Also, the new Congress could veto state laws, including those that contradicted treaties)

7. & 8. Representation in both houses of Congress will be by an equitable ratio of free persons, including indentured servants, 3/5 of slaves, not including Indians not paying taxes.

(Large State delegates must have been confident that having defeated equality of State representation in the Senate this time, it would pass again when presented to the Convention. The Small State revolt would begin tomorrow.

9. There will be one Executive elected by Congress for a term of seven years. He will execute the laws, appoint officers not otherwise provided. He can be impeached and removed for malpractice and neglect of duty.

The national treasury will pay salaries of Congressmen, Senators and Executive.

10. The Executive may veto Congressional bills. Two thirds of Congress to override required.

11. A National Judiciary will be composed of one Supreme Court to be appointed by the Senate.

12. Congress may, at its discretion, establish inferior courts.

13. Jurisdiction of the National Judiciary will be to cases regarding the national revenue, impeachments, and questions involving the national peace and harmony.

14. Provision shall be made for new states. Established states cannot avoid this by denying a quorum as they did so often under the Articles.

15. There shall be a smooth transition between the Articles and new government.

16. A republican constitution is guaranteed to all states.

17. Provision shall be made for amendments.

18. Member of state government, officers of the several states shall be bound by oath to the United States.

19. Assemblies chosen by the people of the states are to approve/reject the new Constitution.

Adjourned

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.