On motion of M^r L. Martin to fix tomorrow for reconsidering the vote
concerning "eligibility of the Exec^{tive} a 2^d time" it passed in the
affirmative.
Mas. ay. Con^t ay. N. J. absent. P^a ay. Del. ay. M^d ay.
V^a ay. N. C. ay. S. C. ay. Geo. absent.
The residue of the Resol. 9. concerning the Executive was postp^d till
tomorrow.
Resol. 10. that Executive sh^l have a right to negative legislative acts
not afterwards passed by 2/3 of each branch, agreed to nem. con.
Resol. 11. "that a Nat^l Judiciary shall be estab^d to consist of one
supreme tribunal", ag^d to nem. con.
"The judges of which to be appoint^d by the 2^d branch of the Nat^l
Legislature,"
M^r Ghorum, w^d prefer an appointment by the 2^d branch to an appointm^t
by the whole Legislature; but he thought even that branch too numerous,
and too little personally responsible, to ensure a good choice. He
suggested that the Judges be appointed by the Execu^{ve} with the advice
& consent of the 2^d branch, in the mode prescribed by the constitution
of Mas^{ts}. This mode had been long practised in that country, & was
found to answer perfectly well.
M^r Wilson, still w^d prefer an appointm^t by the Executive; but if that
could not be attained, w^d prefer in the next place, the mode suggested
by M^r Ghorum. He thought it his duty however to move in the first
instance "that the Judges be appointed by the Executive." M^r Gov^r
Morris 2^{ded} the motion.
M^r L. Martin was strenuous for an app^t by the 2^d branch. Being taken
from all the States it w^d be best informed of characters & most capable
of making a fit choice.
M^r Sherman concurred in the observations of M^r Martin, adding that the
Judges ought to be diffused, which would be more likely to be attended
to by the 2^d branch, than by the Executive.
M^r Mason. The mode of appointing the Judges may depend in some degree
on the mode of trying impeachments of the Executive. If the Judges were
to form a tribunal for that purpose, they surely ought not to be
appointed by the Executive. There were insuperable objections besides
ag^{st} referring the appointment to the Executive. He mentioned as one,
that as the Seat of Gov^t must be in some one State, and as the
Executive would remain in office for a considerable time, for 4. 5. or 6
years at least, he would insensibly form local & personal attachments
within the particular State that would deprive equal merit elsewhere, of
an equal chance of promotion.
M^r Ghorum. As the Executive will be responsible in point of character
at least, for a judicious and faithful discharge of his trust, he will
be careful to look through all the States for proper characters. The
Senators will be as likely to form their attachments at the seat of
Gov^t where they reside, as the Executive. If they cannot get the man of
the particular State to which they may respectively belong, they will be
indifferent to the rest. Public bodies feel no personal responsibility,
and give full play to intrigue & cabal. Rh. Island is a full
illustration of the insensibility to character produced by a
participation of numbers in dishonorable measures, and of the length to
which a Public body may carry wickedness & cabal.
M^r Gov^r Morris supposed it would be improper for an impeachm^t of the
Executive to be tried before the Judges. The latter would in such case
be drawn into intrigues with the Legislature and an impartial trial
would be frustrated. As they w^d be much about the Seat of Gov^t they
might even be previously consulted & arrangements might be made for a
prosecution of the Executive. He thought therefore that no argument
could be drawn from the probability of such a plan of impeachments
ag^{st} the motion before the House.
M^r Madison suggested that the Judges might be appointed by the
Executive, with the concurrence of 1/3 at least, of the 2^d branch. This
would unite the advantage of responsibility in the Executive with the
security afforded in the 2^d branch ag^{st} any incautious or corrupt
nomination by the Executive.
M^r Sherman, was clearly for an election by the Senate. It would be
composed of men nearly equal to the Executive, and would of course have
on the whole more wisdom. They would bring into their deliberations a
more diffusive knowledge of characters. It would be less easy for
candidates to intrigue with them, than with the Executive Magistrate.
For these reasons he thought there would be a better security for a
proper choice in the Senate than in the Executive.
M^r Randolph. It is true that when the app^t of the Judges was vested in
the 2^d branch an equality of votes had not been given to it. Yet he had
rather leave the appointm^t there than give it to the Executive. He
thought the advantage of personal responsibility might be gained in the
Senate by requiring the respective votes of the members to be entered on
the Journal. He thought too that the hope of receiving app^{ts} would be
more diffusive if they depended on the Senate, the members of which w^d
be diffusively known, than if they depended on a single man who could
not be personally known to a very great extent; and consequently that
opposition to the System, would be so far weakened.
M^r Bedford thought there were solid reasons ag^{st} leaving the
appointment to the Executive. He must trust more to information than the
Senate. It would put it in his power to gain over the larger States, by
gratifying them with a preference of their Citizens. The responsibility
of the Executive so much talked of was chimerical. He could not be
punished for mistakes.
M^r Ghorum remarked that the Senate could have no better information
than the Executive. They must like him, trust to information from the
members belonging to the particular State where the candidate resided.
The Executive would certainly be more answerable for a good appointment,
as the whole blame of a bad one would fall on him alone. He did not mean
that he would be answerable under any other penalty than that of public
censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of the Judges to the
Executive, instead of the 2^d branch
Mas. ay. Con^t no. P^a ay. Del. no. M^d no. V^a no. N. C. no.
S. C. no. Geo. absent.
M^r Ghorum moved "that the Judges be nominated and appointed by the
Executive, by & with the advice & consent of the 2^d branch & every such
nomination shall be made at least ---- days prior to such appointment."
This mode he said had been ratified by the experience of a 140 years in
Massachus^{ts}. If the app^t should be left to either branch of the
Legislature, it will be a mere piece of jobbing.
M^r Gov^r Morris 2^{ded} & supported the motion.
M^r Sherman thought it less objectionable than an absolute appointment
by the Executive; but disliked it, as too much fettering the Senate.