foreigners may be interested, in the construction of any treaty or treaties, or which may arise on any of the Acts for regulation of trade, or the collection of the federal Revenue; that none of the Judiciary shall during the time they remain in Office be capable of receiving or holding any other office or appointment during their time of service, or for thereafter.1 But this was not all. The sixth article contained a very fruitful suggestion, which was destined to replace the proposal of a negative on the laws of the State or on the laws of Congress, either by the National Legislature or a Council of Revision, and, acting upon individuals, makes a resort to force against the States, contained in the last clause of the Article, unnecessary as it was always inexpedient, although originally espoused by such a man as Mr. Madison. Thus: 6. Res. that all Acts of the U. States in Congs. made by virtue & in in pursuance of the powers hereby & by the articles of confederation vested in them, and all Treaties made & ratified under the authority of the U. States shall be the supreme law of the respective States so far forth as those Acts or Treaties shall relate to the said States or their Citizens, and that the Judiciary of the several States shall be bound thereby in their decisions, any thing in the respective laws of the Individual States to the contrary notwithstanding; and that if any State, or any body of men in any State shall oppose or prevent ye. carrying into execution such acts or treaties, the federal Executive shall be authorized to call forth ye power of the Confederated States, or so much thereof as may be necessary to enforce and compel an obedience to such Acts, or an Observance of such Treaties.2 It was recognized that these propositions could not be rejected off-hand, even although a majority of the Convention favored the Virginian plan. It was therefore agreed that the propositions which Mr. Patterson had introduced as a substitute for Mr. Randolph's should be referred to a Committee of the Whole, and the Randolph plan was likewise recommitted "in order to place the two plans in due comparison." 3 On July 18th the Convention took up the question of the judiciary and considered the eleventh, twelfth and thirteenth resolutions of Mr. Randolph's plan, as modified by the Committee of the Whole, in preference to Mr. Patterson's plan, which, however, had been very carefully considered in the meantime. There was no dissent to the formation of a national judiciary or to the proposition that this judiciary should consist of one supreme tribunal, but the debate turned upon the appointment of the judges, an embarrassing, difficult and delicate matter. The views on this point were divergent, some Question of Appointment of Judges members advocating appointment by the legislature, others by the second house, some by the executive and still others preferring Mr. Gorham's suggestion that the "Judges be appointed by the Execuve. with the advice & consent of the 2a branch, in the mode prescribed by the constitution of Masts." Mr. Gorham stated as a fact that "this mode had been long practiced in that country, & was found to answer perfectly well." It has since been practiced in the United States and has likewise been found to answer equally well. 1 After much debate without reaching an agreement, and the rejection of Mr. Wilson's motion leaving the appointment of the judges to the executive instead of to the second branch, Mr. Gorham moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2a branch & every such nomination shall be made at least days prior to such appointment.' "This mode," he said, according to Mr. Madison's Notes, "had been ratified by the experience of 140 years in Massachusetts. If the app'. should be left to either branch of the Legislature, it will be a mere piece of jobbing." "2 3 The Convention tied on Mr. Gorham's motion, thereby defeating it,3 whereupon Mr. Madison moved that "the Judges should be nominated by the Executive, & such nomination should become an appointment if not disagreed to within days by 3 of the 2a branch." On the 21st of the month it was considered in a slightly amended form and in its stead a motion was adopted that "the judges of which shall be appointed by the second branch of the national legislature." An agreement on this vexed question was therefore very difficult. 4 The clause of the eleventh resolution, that the judges "hold their office during good behaviour" was unanimously adopted, as was also the clause concerning the punctual payment of their salaries. It will be recalled that, as worded, this clause prevented an increase or diminution of the salaries of the judges during their tenure of office. After much discussion and no little misgiving it was decided, and wisely, by a vote of 6 to 2, to strike out the provision against the increase of salaries, and as thus amended this portion of the resolution passed unanimously.5 The framers of the Constitution had decided upon a division of power within the Government of the Union, and, for the protection of the judiciary as well as for the impartial administration of justice, they were anxious that the judges, when and however selected, should be independent of the appointing power. Therefore, they were to hold office during good behavior and during their tenure of office they were to receive salaries which assuredly should not be decreased, if indeed they might be increased, during their tenure of office, even although they might depend upon the pleasure or discretion of one or the other branch of the Government for their appointment. The experience of colonial days had shown them the wisdom if not the necessity of this action on their part; but if they had forgotten it, they had an object lesson before their very eyes, for in the preceding year the judges of Rhode Island, who had declared a law of that State to be unconstitutional in the case of Trevett v. Weeden, were summoned before the Assembly "to render their reasons for adjudging an act of the General Assembly to be unconstitutional and so void." Although no action was taken against them they were not reelected by the Legislature at the expiration of their terms in the spring of the very year in which the Federal Convention met in Philadelphia. 1 The 12th resolution, empowering Congress to institute inferior tribunals, was equally fortunate, although it was objected to, Mr. Sherman saying that he 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." But the views tersely expressed by George Mason apparently carried conviction, that "many circumstances might arise. not now to be foreseen, which might render such a power absolutely necessary." 2 The clause in the 13th resolution, relating to the impeachment of national officers, was struck out, and " several criticisms," to quote Mr. Madison's Notes, "having been made on the definitions" of the jurisdiction of the national judiciary, it was, with the approval of the Convention, recast by Mr. Madison so as to read, "that the jurisdiction shall extend to all cases arising under the Nat'. laws: And to such other questions as may involve the Nat'. peace & harmony." 994 There seems to have been a tacit understanding that, although the general principles of the Constitution should be considered in the Committee of 1 Brinton Coxe, Judicial Power and Unconstitutional Legislation, 1893, p. 246. In the session of July 17th of the Federal Convention of 1787, Mr. Madison said, with direct reference to the case of Trevett v. Weeden, 2 Confidence cannot be put in the State Tribunals as guardians of the National authority and interests. In all the States these are more or less dependt. on the Legislatures. In Georgia they are appointed annually by the Legislature. In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be willing instruments of the wicked & arbitrary plans of their masters. Documentary History, Vol. III, p. 352. Also, J. B. Scott, Judicial Settlement of Controversies between States, Vol. I, pp. 101-3. Documentary History, Vol. III, p. 369. • Ibid. Committee of Detail the Whole, where the discussion was more informal than in the Convention itself, and although the Convention should formally pass upon each clause of the Constitution, it would be necessary to refer the resolutions agreed upon to some committee which should elaborate them, devise the framework of the Constitution, and insert them in the form of articles in the order which they might properly assume in an instrument of that kind. Therefore, on July 23rd, a motion was made and unanimously agreed to that "the proceedings of the Convention for the establishment of a Nat'. Govt. except the part relating to the Executive), be referred to a Committee to prepare & report a Constitution conformable thereto." This motion was unanimously agreed to, and, recognizing from their own experience in the Convention that a small committee was more effective than a large one, it was unanimously resolved that the committee should consist of five members, to be appointed on the morrow. Therefore, on the 24th, the five members to compose the committee to report a constitution were elected by ballot: Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. It was likewise felt that the committee should have before it the projects relating to a constitution which had been presented by Mr. Pinckney in his own behalf and by Mr. Patterson on behalf of the smaller States. They were therefore referred to this committee, henceforth known as the Committee of Detail.2 Inasmuch as the motion to refer the resolutions agreed upon was passed on the 23d, and as it was desirable that the committee should have before it any resolutions agreed to since that date, it was decided on the 26th to refer these as well to the Committee of Detail, and, in order to give its members an opportunity to consider the projects and to report a draft of a constitution, the Convention adjourned to August 6th. In the very short period of ten days, between the 26th of July and the 6th of August, the committee was able to report an instrument which bears very strong resemblance to the present Constitution of the United States. On that day the Convention met and each member was provided with a printed draft which, amended and improved in many ways, became the actual Constitution. We do not know just what took place in the Committee of Detail during the intervening ten days, other than that the Committee complied with the directions of the Convention to prepare and to report a draft "conformable to the resolutions passed by the Convention." A very careful and critical examination of the papers and documents which have been preserved in various ways, and which have come to light in the course of the last few years, has enabled students of the Constitution to divine, where they can not actually describe, the method of procedure.1 Among the papers of George Mason, a member of the Convention, there was found a paper in Mr. Randolph's handwriting, of which certain parts have been identified as the handwriting of John Rutledge. Among the papers in the possession of James Wilson, a member of the Committee of Detail, there were various documents, one of which is a draft of the Constitution in Wilson's handwriting, which seems to have incorporated in it certain portions of the Pinckney draft and of the New Jersey plan. It has been concluded that the Committee of Detail, under Mr. Rutledge's chairmanship, took up the resolutions of the Convention as referred; that, after discussion and debate, and agreement upon a general plan, the resolutions were referred to Mr. Randolph, the sponsor of the Virginian plan although he is not to be credited with its authorship; that Mr. Randolph prepared the instrument in his handwriting, which is found to be the first draft of the Constitution, together with suggestions and criticisms; that this draft was laid before the Committee of Detail, considered by it, and modifications thereof inserted in the document in the handwriting of Mr. Rutledge, its chairman; that at a later stage, James Wilson, with the amended Randolph draft before him and the Pinckney and Patterson propositions, prepared an enlarged and revised draft. This, called the Wilson draft, was likewise amended by the committee and the changes incorporated in it appear to be in the handwriting of Mr. Rutledge, its chairman. Be this as it may, the printed report of the committee was laid before the Convention, and a printed copy of the report was at the same time furnished to each member. The articles of the draft concerning the judiciary, the Supreme Court Draft and inferior courts are as follows: Proposals VII Sect. 1. The Legislature of the United States shall have the power . . VIII The Acts of the Legislature of the United States made in pursuance of this Constitution, and all treaties made under the authority of the United States shall be the supreme law of the several States, and of their citizens and inhabitants; and the judges in the several States shall be bound thereby in their decisions; anything in the Constitutions or laws of the several States to the contrary notwithstanding. 'See Max Farrand, The Framing of the Constitution of the United States, Chapters IX and X; also, J. Franklin Jameson, Studies in the History of the Federal Convention of 1787, in Annual Report of the American Historical Association, 1902, Vol. I, pp. 89-167. |