Article 3, Section 1
[Volume 4, Page 139]
Debate in Pennsylvania Ratifying Convention4, 11 Dec. 1787Elliot 2:480--81, 514, 539
[James Wilson:] Sir, it has often been a matter of surprise, and frequently complained of even in Pennsylvania, that the independence of the judges is not properly secured. The servile dependence of the judges, in some of the states that have neglected to make proper provision on this subject, endangers the liberty and property of the citizen; and I apprehend that, whenever it has happened that the appointment has been for a less period than during good behaviour, this object has not been sufficiently secured; for if, every five or seven years, the judges are obliged to make court for their appointment to office, they cannot be styled independent. This is not the case with regard to those appointed under the general government; for the judges here shall hold their offices during good behavior. I hope no further objections will be taken against this part of the Constitution, the consequence of which will be, that private property, so far as it comes before their courts, and personal liberty, so far as it is not forfeited by crimes, will be guarded with firmness and watchfulness.
It may appear too professional to descend into observations of this kind; but I believe that public happiness, personal liberty, and private property, depend essentially upon the able and upright determinations of independent judges.
Permit me to make one more remark on the subject of the judicial department. Its objects are extended beyond the bounds or power of every particular state, and therefore must be proper objects of the general government. I do not recollect any instance where a case can come before the judiciary of the United States, that could possibly be determined by a particular state, except one--which is, where citizens of the same state claim lands under the grant of different states; and in that instance, the power of the two states necessarily comes in competition; wherefore there would be great impropriety in having it determined by either.
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I now proceed to the judicial department; and here, Mr. President, I meet an objection, I confess, I had not expected; and it seems it did not occur to the honorable gentleman (Mr. Findley) who made it until a few days ago.[Volume 4, Page 140]
He alleges that the judges, under this Constitution, are not rendered sufficiently independent, because they may hold other offices; and though they may be independent as judges, yet their other office may depend upon the legislature. I confess, sir, this objection appears to me to be a little wire-drawn. In the first place, the legislature can appoint to no office; therefore, the dependence could not be on them for the office, but rather on the President and Senate; but then these cannot add the salary, because no money can be appropriated but in consequence of a law of the United States. No sinecure can be bestowed on any judge but by the concurrence of the whole legislature and the President; and I do not think this an event that will probably happen.
It is true that there is a provision made in the Constitution of Pennsylvania, that the judges shall not be allowed to hold any other office whatsoever; and I believe they are expressly forbidden to sit in Congress; but this, sir, is not introduced as a principle into this Constitution. There are many states in the Union, whose constitutions do not limit the usefulness of their best men, or exclude them from rendering those services to their country for which they are found eminently qualified. New York, far from restricting their chancellor, or judges of the Supreme Court, from a seat in Congress, expressly provide for sending them there on extraordinary occasions. In Connecticut, the judges are not precluded from enjoying other offices. Judges from many states have sat in Congress. Now, it is not to be expected that eleven or twelve states are to change their sentiments and practice, on this subject, to accommodate themselves to Pennsylvania.
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[Thomas McKean:] The next objection is against the judicial department. "The judicial power shall be vested in one Supreme Court." An objection is made that the compensation for the services of the judges shall not be diminished during their continuance in office; and this is contrasted with the compensation of the President, which is to be neither increased nor diminished during the period for which he shall be elected. But that of the judges may be increased, and the judge may hold other offices of a lucrative nature, and his judgment be thereby warped.
Do gentlemen not see the reason why this difference is made? Do they not see that the President is appointed but for four years, whilst the judges may continue for life, if they shall so long behave themselves well? In the first case, little alteration can happen in the value of money; but in the course of a man's life, a very great one may take place from the discovery of silver and gold mines, and the great influx of those metals; in which case an increase of salary may be requisite. A security that their compensation shall not be lessened, nor they have to look up to every session for salary, will certainly tend to make those officers more easy and independent.
"The judges may hold other offices of a lucrative nature." This part of the objection reminds me of the scheme that was fallen upon, in Pennsylvania, to prevent any person from taking up large tracts of land. A law was passed restricting the purchaser to a tract not exceeding three hundred acres; but all the difference it made was, that the land was taken up by several patents, instead of one, and the wealthy could procure, if they chose it, three thousand acres. What though the judges could hold no other office, might they not have brothers, children, and other relations, whom they might wish to see placed in the offices forbidden to themselves? I see no apprehensions that may be entertained on this account.
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.
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