Constitutional Journal

-Wednesday, July 18, 1787

Yesterday the Convention moved toward consensus with a majority vote on sweeping powers for the proposed new Congress.

LIKE a team of horses in harness and finding their stride, delegates quickened the pace of their deliberations today and decided on provisions for the Judicial branch of the new national government.

The Convention without debate unanimously agreed to the establishment of a Supreme Court. And, without dissent, the powers granted to the high court are far more sweeping than had been recommended earlier. The new Congress was also granted power to create lower courts.

As in previous sessions, however, delegate disagreement surfaced over why the existing State courts could not perform the function of the proposed national inferior courts and thus prevent expensive duplication. Pierce Butler of South Carolina raised this point. Luther Martin, Maryland's Attorney General, insisted that inferior federal tribunals sitting in the States would create jealousies and jurisdictional disputes.

``The Courts of the States can not be trusted with the administration of the National laws,'' Virginia's Gov. Edmund Randolph bluntly insisted. Enlarging on this essential point, Nathaniel Gorham of Massachusetts told the delegates:

``There are in the States already [federal] Courts with jurisdiction for trial of piracies &c. committed on the Seas. No complaints have been made by the States or the Courts of the States. Inferior tribunals are essential to render the authority of the Natl. Legislature effectual.''

Mr. Gorham also raised a critical point when the delegates debated the method of appointing judges.

In the Virginia Plan, it had been proposed that Congress appoint judges, similar to the practice of 10 States that give governors power of judicial appointment.

Mr. Gorham pointed out that the experience in Massachusetts for 140 years has been that the governor appoints judges with the advice and consent of the second branch. He proposed that the individual national Executive be given the power to appoint judges with the advice and consent of the national Senate. The proposal lost in a divided vote, 4-4. The proposal is expected to come before the Convention again, however.

The ease with which delegates have agreed on the formation of the national Judiciary is in sharp contrast to the time and energy devoted thus far to the legislative and executive branches of the proposed national government. One observer attributes this disparity to the belief of most delegates that the Judiciary is the least powerful and active branch of government. Besides, this observer adds, the delegates are in general agreement on the principles that should be emobodied in forming the Judiciary. One such principle is that the Judiciary should be independent.

This was illustrated in today's session, when Col. George Mason of Virginia objected to the Executive appointing judges who might later be faced with trying an Executive in an impeachment trial. ``If the judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive,'' Colonel Mason said.

These day-by-day reports on the Constitutional Convention will continue tomorrow.