James Madison in the Virginia Convention (June 20, 1788)

June 20, 1788.

(The 1st and 2d sections, of the 3d article, still under consideration.)

Mr. Madison. — . . . It may be proper to remark, that the organization of the general government for the United States, was, in all its parts, very difficult. — There was a peculiar difficulty in that of the Executive. — Every thing incident to it, must have participated of that difficulty. — That mode which was judged most expedient was adopted, till experience should point out one more eligible. — This part was also attended with difficulties. It claims the indulgence of a fair and liberal interpretation. I will not deny that, according to my view of the subject, a more accurate attention might place it in terms which would exclude some of the objections now made to it. But if we take a liberal construction, I think we shall find nothing dangerous or inadmissible in it. In compositions of this kind, it is difficult to avoid technical terms which have the same meaning. An attention to this may satisfy gentlemen, that precision was not so easily obtained as may be imagined. I will illustrate this by one thing in the constitution. — There is a general power to provide courts to try felonies and piracies committed on the high seas.—Piracy is a word which may be considered as a term of the law of nations. — Felony is a word unknown to the law of nations, and is to be found in the British laws, and from thence adopted in the laws of these states. It was thought dishonorable to have recourse to that standard. A technical term of the law of nations is therefore used, that we should find ourselves authorized to introduce it into the laws of the United States. . . .1

. . . His criticism is that the judiciary, has not been guarded from an increase of the salary of the judges. I wished myself, to insert a restraint on the augmentation as well as diminution of their compensation; and supported it in the convention.2 — But I was over-ruled. I must state the reasons which were urged. — They had great weight. — The business must increase. If there was no power to increase their pay, according to the increase of business, during the life of the judges, it might happen, that there would be such an accumulation of business, as would reduce the pay to a most trivial consideration. This reason does not hold as to the president. For in the short period which he presides, this cannot happen. His salary ought not therefore to be increased. It was objected yesterday, that there was no provision for a jury from the vicinage. If it could have been done with safety, it would not have been opposed. It might so happen that a trial would be impracticable in the county. Suppose a rebellion in a whole district, would it not be impossible to get a jury? The trial by jury is held as sacred in England as in America. There are deviations of it in England: yet greater deviations have happened here since we established our independence, than have taken place there for a long time, though it be left to the legislative discretion. It is a misfortune in any case that this trial should be departed from, yet in some cases it is necessary. It must be therefore left to the discretion of the legislature to modify it according to circumstances. This is a complete and satisfactory answer.