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to be controlled as well as supported. The association of judges with it in the power over legislation would both double the advantage and diminish the danger. This would also the better enable the judiciary to defend that department against encroachment by the legislature. There were two objections: the first, that the judges ought not to be subject to the bias which their share in making the laws might give them when they came to expound them; the second, that the judiciary department ought to be separate and distinct from the other departments. The weight of the first objection was less than it seemed to be; only a small part of the laws coming before a judge would be laws about which he had been consulted, and of these laws only a few would be so ambiguous as to leave room for his prepossessions; and during the life of a judge few cases of this kind of ambiguity would probably arise. The second objection had no weight, or it applied with equal force to the executive. There would be no improper mixture of the depart

ments.

On a vote, only three States were in favour of the amendment. Later, in Convention, a determined effort was made, upon a motion by Wilson, to overturn the decision thus reached in committee. The arguments now were somewhat different, more insistent, and more definite than before.

Wilson urged that the judges ought to be able to remonstrate against encroachment upon the people as well as upon themselves. It was not enough that they would have an opportunity, as expounders of the law, to defend constitutional rights; laws might be unjust, unwise, and dangerous, and yet not unconstitutional. Let the judges share in the revisionary power, and they could then counteract the attempt to enact such laws. Ellsworth supported the motion. It would strengthen the executive especially in dealing with questions of the law of nations. In addition to what he had said in committee, Madison now urged that the plan would be useful to the legislature, by helping to preserve consistency, conciseness, perspicuity, and technical propriety in the laws, things much needed and much wanting. It would not give too much strength either to the executive or to the judiciary; both of those branches would be apt to be over matched by the legislature, even with such co-operation. Experience had shown, in all the States, that the legislature was a vortex into which all power was apt to be drawn; that was the real source of danger for America.

Gerry opposed the plan as mixing up the branches of government; it was making statesmen of the judges, and setting them up, instead of the legislature, as guardians of the people; it was making the expounders of the law the legislators.

Gouverneur Morris thought that the executive, with a short term, and liable to impeachment in office, would not be a very strong check upon the legislature. To the objection that those who were to expound

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the laws ought not to have part in making them, he referred to England, where the judges had a great share in legislation. They were consulted in difficult and doubtful cases; some of them were members of the legislature; some were members of the Privy Council, where they could advise the executive. There was much more ground for helping the executive here. He feared that the help of the judiciary would not be sufficient. It had been said that the legislature was the proper guardian of liberty. The plain answer was, that experience showed that there would be real danger of bad legislation; a strong check was therefore needed.

Martin considered the plan a dangerous innovation, and also not likely to produce the benefit expected. The judges in their official character would have a negative; join them to the executive and they would have a double negative. And the judiciary would lose the confidence of the people if they were to be able to remonstrate against popular measures of the legislature.

Madison did not think the plan a mixing of departments. Experience had taught them to distrust paper discrimination of the departments; it was not enough to lay down the theory in the Constitution, they ought to add defensive power to each department.

Gorham argued that, as the judges would outnumber the executive, they could take the power out of his hands and sacrifice him; to which Wilson replied that a rule of voting might be provided which would guard against that result.

The motion failed, only three States voting for it. Later, a project to provide a Privy Council, or Council of State, for the President, with heads of bureaux, like the "cabinet" officers afterwards created by Congress, also fell through as a constitutional provision.

(9) THE JUDICIARY

The ninth of the Randolph resolutions, as sent to the committee of the whole House, declared that a national judiciary should be established (to consist of one or more supreme tribunals and of inferior tribunals), to be chosen by the national legislature; the judges to hold office during good behaviour, and to receive compensation, in which no increase or decrease should be made so as to affect the persons actually in office at the time thereof. The jurisdiction of the inferior tribunals should be to hear and determine, in the first instance, and that of the supreme tribunal to hear and determine in last resort, all piracies and felonies on the high seas; captures from an enemy; cases in which foreigners, or citizens. of other States applying, might be interested; or which regarded the collection of the national revenue, impeachments of national officers, and questions involving the national peace and harmony.

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The committee began the consideration of the resolution on June 4, and adopted the first clause, establishing a national judiciary, at once without debate or dissent. It also adopted at once the next clause, which now read "to consist of one supreme tribunal and of one or more inferior tribunals" (so changed from the clause, cited at the beginning of the preceding paragraph, which had itself been added as an entirely new clause to the original Randolph resolution, and which is not in those resolutions as given in the journal of the Federal Convention); the words "one or more " being struck out on the next day.

The clause following, which provided for the appointment of the judges by the national legislature, came on for consideration on the second day. Wilson opposed the plan. Experience showed that it was improper for numerous bodies to make such appointments; intrigue, partiality, and concealment were the necessary accompaniments. A chief reason for unity in the executive was, that officers might be appointed by a single, responsible person. Rutledge would not give such power to a single person; the people would think that they were leaning to monarchy. Besides, he was against any but a supreme tribunal for the nation; the State tribunals should decide questions in the first instance. Madison disliked the election of judges by the legislature or by any numerous body. Intrigue and partiality apart, many of the members of the legislature were incapable of deciding upon the necessary qualification of judges. Nor was he satisfied with giving the appointment to the executive; he inclined to give it to the Senate. He moved to strike out appointment by the legislature and leave a blank for more mature reflexion. This proposal, put at once, prevailed. Notice of a motion to reconsider followed; and another in regard to the clause relating to inferior tribunals.

The clauses concerning the term of office and compensation were then adopted without debate. The rest of the resolution was postponed for the time; and Rutledge now moved that the part of the resolution relating to inferior tribunals be struck out. The clause proposed an unnecessary encroachment on the States. Madison observed that, unless inferior tribunals were dispersed throughout the Republic, with final jurisdiction in many cases, appeals would be multiplied to an oppressive degree; and appeals would not always be a remedy, at best. Sherman favoured the motion, and dwelt upon the expense of creating Courts when the State Courts would answer the purpose.

Rutledge's motion prevailed, six States voting for it, four against, and one being divided.

Wilson and Madison now moved, in accordance with a suggestion thrown out by Dickinson, that a clause be inserted, that the national legislature be empowered (not required) to institute inferior tribunals. Discretion, they argued, ought to be given to the legislature. The motion prevailed by vote of eight States to two, with one State divided.

Later, the part of the resolution relating to the jurisdiction of the

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courts was changed so as to make it 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." Appointment of the judges by the Senate rather than by the whole legislature was agreed to; and then the committee made report to the Convention in three resolutions, accordingly. The first one provided for a Supreme Court, the judges to be appointed by the Senate; the second that the national legislature might appoint inferior tribunals; the third related to jurisdiction.

The first resolution came up for consideration by the Convention on July 18. That a national judiciary should be established, to consist of one supreme tribunal, was at once agreed to without dissent. The next clause, on the appointment of the judges, was a subject of difference. Gorham preferred appointment by the Senate to appointment by the whole legislature; but even the Senate would be too large a body to make a good choice. He suggested appointment by the executive, with the advice and consent of the Senate; that mode had long been practised in his own State and had worked well. Wilson preferred appointment by the executive, with the Massachusetts plan as a second choice. He accordingly moved that the judges be appointed by the executive.

Martin favoured election by the Senate; taken from all the States, the Senate would be well informed, and able to make a fit choice. Mason made the point that the question might depend somewhat on the mode to be adopted for trying an impeachment of the executive; if the judges were to try the question, they should not be appointed by the executive. Besides, he found insuperable objections against giving the appointment to the executive; mentioning, for one, that as the seat of government must be in some one State, the executive, remaining there during his term, would form local and personal attachments which would too much influence his choice.

To the last suggestion Gorham replied that the executive would be responsible, not indeed, as he afterwards said, under any other penalty than the public censure, but still to that extent, for the discharge of his trust, and would therefore be careful to look through the States for proper men. Senators would be as likely to form local attachments, during their long terms, at the seat of government, as would the executive; and public bodies felt no personal responsibility. Rhode Island was an illustration.

Gouverneur Morris thought that it would be improper that impeachment of the executive should be tried by the judges. The judges, in such a case, would be drawn into intrigue with the legislature; and as they too would be much about the seat of government, they might be improperly consulted beforehand. Hence it was not desirable that the judges should try an impeachment of the executive. Madison suggested

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that appointment might be made by the executive, with concurrence of a third of the Senate; this plan would unite responsibility in the executive with security against incautious or corrupt nominations. Sherman said that the Senate would be composed of men nearly equal in ability to the executive; together the senators would bring more wisdom and wider knowledge of men. And it would not be so easy for candidates to intrigue with them as with the executive.

There was in the question again more or less feeling in regard to the influence of the smaller States, for in the Senate they were to have an equal voice with the rest. Randolph accordingly observed that, when the appointment of the judges had been given to the Senate, equality of suffrage there had not yet been given. Still he would leave the appointment there rather than give it to the executive. He thought that the advantage of personal responsibility might be had in the Senate by requiring the names of those voting to be entered in the journal. He too thought it would be an advantage that senators would come from all the States.

The motion for appointment by the executive was lost; only Massachusetts and Pennsylvania voting for it. Gorham now moved the adoption of the Massachusetts plan-appointment by the executive with advice and consent of the Senate. The motion, taken at once, was lost; four States, Massachusetts, Pennsylvania, Maryland, and Virginia, voting for it, four against it, others now absent, or not voting.

The question then went over until July 21, when a motion, made by Madison before the postponement, was taken up, that the judges be nominated by the executive, the nomination to become appointment unless disagreed to by two-thirds, afterwards changed to a majority, of the Senate. Madison argued, first, that this would secure responsibility in the matter; secondly, that it would defeat gross partiality or mistake in the nomination; thirdly, that it was required by the principle adopted in other cases concurrence of two authorities in one of which the people, in the other the States, should be represented. If the second branch alone should have the appointment of the judges, they might be appointed by a minority of the people though by a majority of the States. Moreover it would throw the appointment entirely into the hands of the northern States.

Ellsworth opposed and Gouverneur Morris favoured the motion. Ellsworth might be willing to allow the executive a veto upon a nomination by the Senate, subject to being overruled by two-thirds of the senators, but he preferred absolute appointment by the Senate. Increase of power in the executive would be disliked by the people. Morris said, first, that the States would often have an interest in the choice of judges, hence the Senate, where the States were to vote, should not appoint; secondly, that the executive, in the necessary intercourse with every part of the country, would or might have better information than the Senate;