The Journal of the Debates in the Convention which framed the Constitution of USA Volume II Part 36

N. H. ay. Mas. abs^t. C^t ay. N. J. abs^t. P^a ay. Del. no.

M^d ay. V^a ay. N. C. abs^t. S. C. no. Geo. ay.

The clause for removing the President on impeachment by the House of Rep^s and conviction in the supreme Court, of Treason, Bribery or corruption, was postponed nem: con: at the instance of M^r Gov^r Morris, who thought the Tribunal an improper one, particularly, if the first Judge was to be of the privy Council.

M^r Gov^r Morris objected also to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.

M^r Madison added as a ground of objection that the Senate might r.e.t.a.r.d the appointment of a President in order to carry points whilst the revisionary power was in the President of their own body, but suggested that the Executive powers during a vacancy, be administered by the persons composing the Council to the President.

M^r Williamson suggested that the Legislature ought to have power to provide for occasional successors, & moved that the last clause (of 2 sect. X art:) relating to a provisional successor to the President, be postponed.

M^r d.i.c.kinson 2^{ded} the postponement, remarking that it was too vague.

What is the extent of the term "disability" and who is to be the judge of it?

The postponement was agreed to nem: con:

Col: Mason & M^r Madison moved to add to the oath to be taken by the supreme Executive "and will to the best of my judgment and power preserve protect and defend the Const.i.tution of the U. S."

M^r Wilson thought the general provision for oaths of office, in a subsequent place, rendered the amendment unnecessary.--

On the question

N. H. ay. Mas. abs^t. C^t ay. P^a ay. Del. no. M^d ay. V^a ay.

N. C. abs^t. S. C. ay. Geo. ay.

Art: XI. being taken up.

Doc^r Johnson suggested that the judicial power ought to extend to equity as well as law--and moved to insert the words, "both in law and equity" after the words "U. S." in the 1^{st} line of sect 1.

M^r Read objected to vesting these powers in the same Court.

On the question

N. H. ay. Mas. absent. C^t ay. N. J. abs^t. P. ay. Del. no.

M^d no. Virg^a ay. N. C. abs^t. S. C. ay. Geo. ay.

On the question to agree to Sect. 1. art. XI. as amended

N. H. ay. Mas. abs^t. C^t ay. P^a ay. N. J. abs^t. Del. no.

M^d no. V^a ay. N. C. abs^t. S. C. ay. Geo. ay.

M^r d.i.c.kinson moved as an amendment to sect. 2. art XI after the words "good behavior" the words "provided that they may be removed by the Executive on the application by the Senate and House of Representatives."

M^r Gerry 2^{ded} the motion.

M^r Gov^r Morris thought it a contradiction in terms to say that the Judges should hold their offices during good behavior, and yet be removeable without a trial. Besides it was fundamentally wrong to subject Judges to so arbitrary an authority.

M^r Sherman saw no contradiction or impropriety if this were made a part of the Const.i.tutional regulation of the Judiciary establishment. He observed that a like provision was contained in the British Statutes.

M^r Rutlidge. If the Supreme Court is to judge between the U. S. and particular States, this alone is an insuperable objection to the motion.

M^r Wilson considered such a provision in the British Government as less dangerous than here, the House of Lords & House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had _successively_ offended by his independent conduct, both houses of Parliament. Had this happened at the same time, he would have been ousted. The Judges would be in a bad situation if made to depend on any gust of faction which might prevail in the two branches of our Gov^t.

M^r Randolph opposed the motion as weakening too much the independence of the Judges.

M^r d.i.c.kinson was not apprehensive that the Legislature composed of different branches constructed on such different principles, would improperly unite for the purpose of displacing a Judge.

On the question for agreeing to M^r d.i.c.kinson's Motion

N. H. no. Mas. abs^t. C^t ay. N. J. abs^t. P^a no. Del. no.

M^d no. V^a no. N. C. abs^t. S. C. no. Geo. no.

M^r Madison and M^r M^cHenry moved to reinstate the words "increased or"

before the word "diminished" in 2^d sect, art. XI.

M^r Gov^r Morris opposed it for reasons urged by him on a former occasion--

Col: Mason contended strenuously for the motion. There was no weight he said in the argument drawn from changes in the value of the metals, because this might be provided for by an increase of salaries so made as not to affect persons in office, and this was the only argument on which much stress seemed to have been laid.

Gen^l Pinkney. The importance of the Judiciary will require men of the first talents: large salaries will therefore be necessary, larger than the U. S. can allow in the first instance. He was not satisfied with the expedient mentioned by Col: Mason. He did not think it would have a good effect or a good appearance, for new Judges to come in with higher salaries than the old ones.

M^r Gov^r Morris said the expedient might be evaded & therefore amounted to nothing. Judges might resign, & then be re-appointed to increased salaries.

On the question

N. H. no. C^t no. P^a no. Del. no. M^d div^d. V^a ay. S. C. no.

Geo. abs^t also Mas^{ts}. & N. J. & N. C.

M^r Randolph & M^r Madison then moved to add the following words to art.

XI sect. 2. "nor increased by any Act of the Legislature which shall operate before the expiration of three years after the pa.s.sing thereof."

On the question

N. H. no. C^t no. P^a no. Del. no. M^d ay. V^a ay. S. C. no.

Geo. abs^t also Mas. N. J. & N. C.

Sect. 3. art. XI. being taken up, the following clause was postponed viz, "to the trial of impeachments of officers of the U. S." by which the jurisdiction of the supreme Court was extended to such cases.

M^r Madison & M^r Gov^r Morris moved to insert after the word "controversies" the words "to which the U. S. shall be a party," which was agreed to nem: con:

Doc^r Johnson moved to insert the words "this Const.i.tution and the"

before the word "laws."

M^r Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Const.i.tution & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Const.i.tution in cases not of this nature ought not to be given to that Department.

The motion of Doc^r Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.

On motion of M^r Rutlidge the words "pa.s.sed by the Legislature" were struck out, and after the words "U. S." were inserted nem. con: the words "and treaties made or which shall be made under their authority"

conformably to a preceding amendment in another place.