Wednesday June 13, 1787
In Committee of the Whole
James Madison's Notes
Resol: 9. being resumed The latter parts of the clause relating to the jurisdiction of the Natl. 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. 1
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" 2
Mr. Madison, objected to an appt. by the whole Legislature. Many of them were 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. 3 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 Ho 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 4 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 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 lower branch to move, & people can then mark him
On the question for excepting money bills as propd. by Mr. Gerry. Mas. no. Cont. no. N.Y. ay. N.J. no. Del. ay. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [Ayes--3; noes --7.] 5
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.
June 13 Report of the Committee of Whole on Mr. Randolphs prepositions 6
- Resd. that it is the opinion of this Committee that a National Governmt. ought to be established, consisting of a supreme Legislative, Executive & Judiciary.
- Resold. that the National Legislature ought to consist of two branches.
- 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 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.
- 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, namely, seven years, to receive fixed stipends by which they may be compensated for the devotion of their time to 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.
- Resd. that each branch ought to possess the right of originating Acts
- 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.
- 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:
- 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.
- Resolved that a National Executive be instituted to consist of a single person, to be chosen by the Natl. 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 public service to be paid out of the national Treasury.
- Resold. that the natl. Executive shall have a right to negative any Legislative Act, which shall not be afterwards passed unless by two thirds of each branch of the National Legislature
- Resold. that a Natl. Judiciary be established, to consist of one supreme tribunal, the Judges of which to 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.
- Resold. that the Natl. Legislature be empowered to appoint inferior Tribunals.
- Resd. that the jurisdiction of the Natl. Judiciary shall extend to all cases which respect the collection of the Natl. revenue, 7 impeachments of any Natl. Officers, and questions which involve the national peace & harmony.
- 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.
- 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.
- Resd. that a Republican Constitution & its existing laws ought to be guaranteed to each State by the U. States.
- Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary.
- Resd. that the Legislative, Executive, & Judiciary powers within the several States ought to be bound by oath to support the articles of Union
- 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 8 recommended by the several Legislatures to be expressly chosen by the people to consider and decide thereon.
1: Taken from Journal.
2: Originally Madison had recorded "Mr. Pinkney proposed that the National Judiciary should be appointed by the Natl. Legislature. Mr. Sherman seconds him." This was struck out, and the wording of the text, revised from Journal, was substituted. Note that Madison retains his own form of the motion, i. e., appointment by the "Legislature", and not by the "second branch" as stated in the Journal. See above, note x. Yates agrees with Madison, and they are undoubtedly right and the Journal wrong as the subsequent records show.
3: Upon this subject, see Records of July 5--7, July 14, July 16, August 8, September 5, September 8. There seems to be no record of any favorable action on this point. It was postponed on June 2; it does not appear in A; and there is no such action noticed on June 12. It was perhaps voted on June 12, when similar action was taken for the legislature.
4: Crossed out "Mr. King reinforced the arguts."
5: Detail of Ayes and Noes, Vote 61, includes Pennsylvania in the negative.
6: The differences between the wording of this document and that of B above are too slight to be noticed, except in Resolution 19 where Madison omits the words "of representatives" after "Assemblies". Copies of this report are found among the papers of various delegates, but they are not sufficiently distinctive to warrant reprinting. Cf. Appendix A, CLVIII (6).
7: In Wilson's copy is a marginal note opposite this clause:-- "(or the national Regulations of Trade) N. B. the Judicial should be commensurate to the legislative and executive Authority".
8: See above, note 6.