Before resolving into the Committee of the Whole, the credentials of two new delegates were read, those of Abraham Clark and William Livingston of New Jersey. However, only Livingston took his seat. Clark is still in New York attending the Confederation Congress.
Writers often begin their histories of the Constitutional Convention remarking on the weather, nearly always reporting that Philadelphia in 1787 experienced one of the hottest summers in decades. Many claim it was truly “oppressive.” However, such a claim has been shown to be inaccurate.
William Samuel Johnson arrived in Philadelphia from Connecticut last Friday and attended his first session the next day. That evening he checked in at the City Tavern and made the second entry in his daily account of his participation in the Convention. His journal is unique because it includes a daily record of the weather, but no other information of interest except an occasional reference to dining with Benjamin Franklin, Robert Morris, the Mifflins, and so on.
Johnson actually recorded more days listed as “cold, cool, or fair” than listed as “warm, hot, or very hot.” Jacob Hiltzheimer, a local businessman and member of the Pennsylvania Assembly, and Peter Legaux, a farmer living several miles outside of Philadelphia, kept detailed meteorological records which were retained by the American Philosophical Society or printed in the monthly Universal Asylum and Columbian Magazine. Their records and others led David Ludlum of the American Weather History Center to conclude that “in general terms Philadelphia enjoyed a cool summer in 1787.”
Why, then, this apparent obsession with “a very hot summer” by so many writers? It has a dramatic flair - perhaps it makes the delegates appear even more valiant for enduring those four long months. Conditions were made more uncomfortable by the decision to close the windows, not only to assure secrecy, but to keep out flies, mosquitos, and street noise. Making matters worse, delegates dressed in coats and vests and refused to remove them. Delegates from the north, accustomed to colder weather, were dressed mostly in wool. When William Paterson called Philadelphia “the warmest place I have ever been in,” it might have been due as much to these other factors than simply the meteorological temperature.
Still sitting as a Committee of the Whole, today the delegates turned to consider the Nineth Resolution of the Virginia Plan. It read in part:
Resolved that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behavior; and to receive punctually at stated times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution…
The remainder of the resolution outlined the jurisdiction of the federal courts, but that was postponed for another day.
Yesterday, just before adjourning, the Committee voted to establish a national judiciary “to consist of one supreme tribunal and of one or more inferior tribunals.” Today, approved in short order, generally without debate, are resolutions that judges hold their offices during good behavior and be paid a fixed salary during their tenure. How they are to be appointed is disputed.
James Wilson began the debate by opposing appointment of federal judges by the national legislature. It would, he declared, foster “intrigue, partiality, and concealment.” He preferred appointments be made by the executive, “a single, responsible person.” Predictably, John Rutledge disagreed, absolutely opposed “to granting so great a power to any single person. The people will think we are leaning too much toward monarchy.” Alarm over “monarchical tendencies” had already been raised several times since the Convention convened on May 25 and will be raised again many times in the days to come.
Benjamin Franklin prodded them to get creative. For example, look at Scotland, he said, where the lawyers nominate the judges. Think outside of the box! He “wished such other modes to be suggested as might occur to other gentlemen.” James Madison was not comfortable placing the power with the executive and was “inclined to give it to the Senatorial branch.” His own notes of the Convention indicate that he only “hinted” at this, he was unsure, and made a motion that effectively postponed further discussion until “mature reflection” could clarify the issue. The motion passed 9 - 2, Connecticut and S. Carolina in the negative.
Rutledge rose again, this time opposing establishment of “inferior courts.” State courts can and should handle all cases “in the first instance,” which may then be appealed to a supreme national tribunal. We should not, he argued, make “unnecessary encroachments on the States and create unnecessary obstacles to their adoption of the new system” we are creating. Roger Sherman (Connecticut) and Pierce Butler (S. Carolina) agreed. “The people will not bear such innovations,” Butler warned. “The States will revolt at such encroachments.” Madison, Dickinson and Wilson took the opposite position, supporting inferior courts for several reasons, the most obvious being that “a government without a proper executive and judiciary would be the mere trunk of a body without arms or legs to act or move.” A robust debate concluded with an 8 – 2 – 1 vote authorizing the national legislature to establish lower federal courts. (Connecticut and S. Carolina voted “nay;” New York was divided.)
As a famous Southern belle, contemplating her fate with a wistful eye to the future, would say one hundred and fifty years hence, “Tomorrow is another day!”