Page:Cambridge Modern History Volume 7.djvu/328

296 Appointment of judges. [i787 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, respon- sible 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 in- capable 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