Page:Cambridge Modern History Volume 7.djvu/327

1787] Ninth resolution. Supreme and inferior Courts. 295 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 con- fidence 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. Ex- perience 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. CH. VIII.