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Convention: A Daily Journal

Center for Civics Education

Convention: A Daily Journal

Convention: A Daily Journal is a day-by-day journal of the 1787 Constitutional Convention convened by twelve of the original thirteen states to amend the Articles of Confederation and create a “more perfect union.” It chronicles the daily activities of the Convention, profiles the delegates and their interactions with each other, and looks back to life in America in the 1780s. Writing in the first person, the story is told from an “observer” hearing events as told in contemporary newspaper accounts and delegates’ personal notes and letters.

Monday, August 27, 1787

August 27, 2020 - 5 minute read

Old Bailey Trial

Letters from delegates to their friends and family throughout the States are predicting their work will be done by mid-September. While there is still work to be done and compromises to be made, cautious optimism is growing. However, one outspoken critic is Elbridge Gerry. Often the contrarian and on the losing side of votes, his persistent, probing questions and relentless opposition to a powerful national government have helped to better refine propositions before the Convention. They have also formed the foundation of opposition to the new Constitution should the plan be submitted to Congress.

In the meantime, Gerry’s views have not changed. Without revealing confidential information about the Convention’s proceedings, Gerry shared his misgivings in a letter to his wife Ann. “I am exceedingly distressed at the proceedings of the Convention,” he wrote, “being apprehensive, and almost sure they will, if not altered materially, lay the foundation of a civil war.” Last week, he was “fatigued and unwell,” but is now feeling much better. To Ann, he continued, “had I known what would have happened, nothing would have induced me to come here. I am and must be patient a little longer.”

This morning, the Convention resumed consideration of Article X, Sect. 2, relating to the powers and duties of the President. The Committee report provides that “in case of removal [upon impeachment], death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties until another President be chosen or until the disability of the President be removed.” Immediately, there was disagreement over who should succeed the President and questions about the definition of the term “disability.” The issue was postponed without objection

Only one additional change to the section on the President’s powers was made before it passed 7 – 2, with two States absent. The change simply adds to the President’s oath of office that he “will and to the best of my judgment and power preserve, protect, and defend the Constitution of the United States.” With that, the Convention turned to Article XI.

In brief, Article XI vests federal judicial power in one Supreme Court and other inferior courts that may be established by Congress. Judges will hold their offices during “good behavior” and be paid for their services. Such compensation cannot be diminished during their continuation in office. Section 3 of Article XI defines the jurisdiction of the Supreme Court, including cases under laws passed by the Congress; cases affecting ambassadors and certain other public officials; controversies between two or more States; and controversies between citizens of different States or between a State and foreign nations.

The first two sections of Article XI were easily approved, but Sect. 3 regarding the Court’s jurisdiction involved a fair amount of legal “word-smithing.” For instance, James Madison and Gouverneur Morris moved to insert after the word “controversies,” the words “to which the United States shall be a party.” Later in the day, they moved “to strike out the beginning of the 3rd section the words ‘The jurisdiction of the Supreme Court’ and to insert the words ‘the judicial power.’” Both of these changes were approved without dissent.

Changes such as these are not controversial, but neither are they unimportant. Most of the men proposing and approving these changes are lawyers, and the judicial power is about the courts who will apply the law. Carefully crafting their authority is important.

Only two provisions occasioned significant disagreement. The Supreme Court’s role in the impeachment of federal officers was postponed. The other issue was Morris’s question as to the meaning of “in all the cases before mentioned” regarding the Court’s appellate jurisdiction. Specifically, he asked, “does it apply to matters of fact as well as law – and to cases of Common law as well as Civil Law?” James Wilson, a lawyer and member of the Committee that drafted the report, responded, “The Committee, I believe, meant facts as well as law and Common as well as Civil law.”

Of the fifty-five delegates who have attended all or some of the sessions, thirty-four are lawyers. Lawyers have been the butt of humor for centuries and often reviled for their ability to argue both sides of any case, depending on the needs of their clients. Perhaps the most well-known, tongue-in-cheek remark appears in William Shakespeare’s Henry VI in which Dick the Butcher advises, “The first thing we do, let’s kill all the lawyers.” However, the skills and abilities lawyers possess are essential to the administration of justice and are playing an important role as a new constitution is being written.

Detouring briefly from the Convention’s day-to-day progress and peering into the future, we can see that many of these lawyer-delegates will continue to make important contributions to their country. William Paterson, James Wilson, and John Blair will become Associate Justices of the Supreme Court. Two delegates, Oliver Ellsworth and John Rutledge, will serve as Chief Justice, although Rutledge’s term will be short-lived. Nominated and taking his seat during a Congressional recess, the Senate will refuse to confirm him for comments on the Jay Treaty. Luther Martin and Jared Ingersoll will make history arguing before the Supreme Court. In 1793, Ingersoll will represent Georgia in Chisholm v. Georgia, leading to adding the Eleventh Amendment to the Constitution. Twenty-six years later, in 1819, Martin will represent Maryland in the landmark case McCulloch v. Maryland which established supremacy of the federal government under the “necessary and proper clause.”

James Madison will not only serve as the first Secretary of State under President George Washington, but will himself be elected President in 1812, defeating DeWitt Clinton and his vice-presidential running-mate, Charles Cotesworth Pinckney. Pinckney will be John Adams’s running-mate in 1800, losing to Thomas Jefferson and Aaron Burr. Pinckney will also be the unsuccessful Federalist candidate for President in 1804 and 1808. Alexander Hamilton will be the first Secretary of the Treasury, while eight of the Convention’s lawyers will serve in the Senate and two in the House. Two more will become ambassadors and two others will serve as US District Court judges. “Killing all the lawyers,” as Dave the Butcher advised, would have deprived the nascent United States of extraordinary leadership.

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