Constitutional Journal

-Tuesday, June 5, 1787 Yesterday the delegates approved a limited veto for the national Executive - subject to overturning by a two-thirds legislative vote.

TODAY'S Convention debate illustrated the ease with which lawyers can agree one day, and disagree the next, on the same issue. A count by this correspondent shows that 34 of the 55 delegates to this Convention are lawyers.

In yesterday's session, the delegates agreed unanimously to create a national Judiciary consisting of one supreme court and one or more inferior courts. Apparently overnight reflection produced a fear of the consequences of power being transferred from State courts to any national tribunal.

James Wilson of Pennsylvania, himself a lawyer, favors a national Judiciary over the States and the appointment of judges by the Executive.

John Rutledge of South Carolina, also a lawyer and a State judge, jumped to his feet. He told the delegates that granting great power to a single person will make people think the Convention is leaning toward monarchy. Besides, Mr. Rutledge added, he favors a single supreme judicial tribunal and letting the State courts decide all cases first.

Dr. Benjamin Franklin, who is not a lawyer, suggested with tongue in cheek that the Convention consider the Scots' method of selecting judges. Lawyers always recommend the best among their ranks for judges, he said with a sly expression, ``in order to get rid of him, and share his practice [among themselves].''

James Madison of Virginia, while appreciating the entertainment value of Dr. Franklin's suggestion, turned serious once on his feet. Distrustful of the Legislature's appointment of judges, he was successful in getting the Convention to delete appointment by the Legislature and leave the matter of who should appoint judges for a later debate.

Mr. Rutledge of South Carolina clashed with Mr. Madison on the issue of whether national inferior courts should have final authority over State courts. The South Carolina jurist said such power would be an encroachment on the States and create obstacles to adoption of the proposed system.

Mr. Madison replied that ``... unless [national] inferior tribunals were dispersed throughout the Republic, with final jurisdiction in many cases, appeals would be multiplied to a most oppressive degree; ... A Government without a proper Executive & Judiciary would be the mere trunk of a body without arms or legs to act or move.''

Mr. Rutledge prevailed in having deleted the creation of inferior courts by the Executive. Refusing to concede defeat, Mr. Madison offered a resolution that granted the Congress the power to create inferior courts, and it was adopted by a sizable majority.

At the end of today's session, Pierce Butler of South Carolina warned the Convention: ``The people will not bear such innovations. The States will revolt at such encroachments.'' The South Carolina planter clearly fears that State courts will become swallowed up by a new national Judiciary.

Today's session illustrated both a virtue and a vice of the pro-nationalists like Mr. Madison. The virtue is found in their energetic efforts to forge a consensus for a new national government. The vice is that the nationalists are provoking rising fears among the delegates who advocate States' rights, although a Convention majority, up to now, has gone along with the nationalists.

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

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