Category: Warren Throckmorton

June 6, 1787
Today the delegates decided against having state legislatures elect the first federal legislative house. Some delegates distrusted the people to directly elect their federal representatives, preferring instead to have the people elect members of state legislatures who in turn would elect federal legislators. After debate, the delegates decided to allow people to vote on what became the House of Representatives.
James Madison gave a speech which I first reported on June 4. Since other delegates included the speech in their June 4 notes, many historians believe the speech came on that day.
In this debate, the delegates continued to refer to England and the states for guidance. For instance, Elbridge Gerry said:

In England the people will probably lose their liberty from the smallness of the proportion having a right of suffrage. Our danger arises from the opposite extreme. Hence in Massachusetts the worst men get into the Legislature. Several members of that body had lately been convicted of infamous crimes.

Gerry did not favor a direct vote to the federal legislature.
John Dickinson of Delaware said:

In the formation of the Senate, we ought to carry it through such a refining process as will assimilate it, as nearly as may be, to the House of Lords in England. He repeated his warm eulogiums on the British Constitution.

On the matter of the relationship between the first magistrate and the judiciary, Madison said:

The maxim on which the objection was founded, required a separation of the Executive, as well as the Judiciary, from the Legislature and from each other. There would, in truth, however, be no improper mixture of these distinct powers in the present case. In England, whence the maxim itself had been drawn, the Executive had an absolute negative on the laws; and the supreme tribunal of justice (the House of Lords), formed one of the other branches of the Legislature. In short, whether the object of the revisionary power was to restrain the Legislature from encroaching on the other co-ordinate departments, or on the rights of the people at large; or from passing laws unwise in their principle or incorrect in their form; the utility of annexing the wisdom and weight of the Judiciary to the Executive seemed incontestable.

Thus far, the Bible’s influence has been nil.

Today, a federal judge in Western Arkansas ruled that one of the fraud and racketeering cases against Gospel for Asia will go to trial in 2019. U.S. District Judge Timothy Brooks set the date for a jury trial on April 15, 2019.
Despite numerous legal maneuvers by GFA’s lawyers, the Murphy RICO case will move ahead. This is a significant win for the plaintiffs since GFA has tried on multiple occasions to have this and another case thrown out. The earlier case involving another Arkansas couple, Matthew and Jennifer Dickson, has been stayed pending an appeal by GFA.
Read the scheduling order here.
The 10 page order in Murphy and Murphy v. Gospel for Asia sets the dates for discovery throughout the remainder of this year and 2018:

1. TRIAL SET FOR APRIL 15, 2019
The trial of this matter is scheduled for a three to four week JURY TRIAL in FAYETTEVILLE, ARKANSAS, beginning on APRIL 15, 2019, at 9:00 a.m. The case will be tried to an nine (9) person jury–unanimous verdict required. Counsel are directed to report to the Fifth-floor Courtroom by no later than 8:30 a.m. on the first day of trial unless otherwise notified.
2. FINAL PRE-TRIAL CONFERENCE
A Final Pre-Trial Conference shall be conducted pursuant to the provisions of Rule 16(e) on APRIL 2, 2019, beginning at 9:00 a.m.
3. AMENDMENT OF PLEADINGS
Leave to amend pleadings and/or to add or substitute parties shall be sought no later than OCTOBER 19, 2017.
4. EXPERT DISCLOSURES
(a) Class Expert Witnesses Plaintiffs’ deadline to provide disclosures and written reports for class experts pursuant to Rule 26(a)(2) is OCTOBER 15, 2017. Defendants’ deadline to provide class expert witness disclosures and written reports pursuant to Rule 26(a)(2) is NOVEMBER 30, 2017. The deadline to provide disclosures and reports of rebuttal experts (i.e. whose testimony will be offered solely to contradict or rebut the expert opinions offered by an opposing class expert) is DECEMBER 15, 2017. (b) Merit Expert Witnesses Plaintiffs’ deadline to provide disclosures and written reports for merit experts pursuant to Rule 26(a)(2) is AUGUST 31, 2018. Defendants’ deadline to provide expert merit witness disclosures and written reports pursuant to Rule 26(a)(2) is OCTOBER 5, 2018. The deadline to provide disclosures and reports of rebuttal experts (i.e. whose testimony will be offered solely to contradict or rebut the expert opinions offered by an opposing merit expert) is OCTOBER 19, 2018.
5. DISCOVERY
The scope of discovery may include both class and merits discovery. That said, discovery which clearly has no purpose other than for merits issues should be deferred until after the Court rules on class certification. The discovery deadline is NOVEMBER 16, 2018. The parties may conduct discovery beyond this date if all parties are in agreement to do so. To avoid later misunderstandings, such agreements should be reduced to a writing which describes the type, scope, and length of the extended period of discovery. That said, the Court will not resolve any disputes which may arise in the course of extended discovery. All discovery requests must be propounded sufficiently in advance of the discovery deadline to allow for a timely response. Witnesses and exhibits not identified and produced in response to Rule 26(a)(1) Initial Disclosures, and/or in response to subsequent discovery requests, may not be used at trial except in extraordinary circumstances. The Court will not grant a continuance because a party does not have time in which to depose a lay or expert witness.
6. MOTIONS DEADLINES (a) Class Certification Motions: The deadline to file class certification motions is JANUARY 19, 2018. < Responses to class certification motions are due not later than six (6) weeks after the motion is filed. < Replies are due not later than three (3) weeks after the response is filed.

A settlement hearing was scheduled for January 31, 2019 in the event that the parties decide to settle.

ORDER SETTING SETTLEMENT CONFERENCE
This case has been referred to the undersigned for a settlement conference. All parties and their lead counsel are hereby ORDERED TO APPEAR before the undersigned at the U. S. Federal Building, 35 E. Mountain, Fayetteville, Arkansas, in Room 210 at 9:00 A.M. on January 31, 2019. All participating attorneys must be of record. An insured party shall appear by a representative of the insurer with the complete authority to agree to a settlement up to the policy limits. An uninsured corporate party shall appear by a representative authorized to agree to a settlement. If a public entity is a party, all of the members of the board of the public entity, or a quorum of the entity, who have complete authority to agree to a settlement–or a representative given such authority by the board members–shall appear. The complete authority to agree to a settlement means that the representative must have the authority to make an independent assessment of the value of the case and proposed settlement terms as the settlement discussions proceed. Each party shall, before arriving at the settlement conference, ascertain in good faith the best settlement proposal that such party can make and be prepared, if asked by the undersigned, to communicate that settlement proposal to the under-signed in confidence. If no settlement discussions have taken place, the court encourages an exchange of demands and offers prior to the settlement conference.

K.P. Yohannan and his co-defendants will need to be in attendance for this conference.
GFA must now submit to scrutiny that the organization has been resisting. GFA has not published an audited financial statement since FY 2013 and lost membership with the Evangelical Council for Financial Accountability in October, 2015.
I believe the GFA action is one of the largest evangelical charities to face a lawsuit of this kind.
 

June 5, 1787
In a busy session, the delegates debated multiple facets of the judiciary. They agree on a Supreme Court and inferior courts but declined to have the legislature approve them. The delegates debated various aspects of forming an interim government and agreed on a policy of admitting new states into the union.
The delegates cited experience, Scotland, and Athens as foundations for their positions.

Mr. WILSON opposed the appointment of Judges by the National Legislature. Experience showed the impropriety of such appointments by numerous bodies. Intrigue, partiality, and concealment were the necessary consequences. A principal reason for unity in the Executive was, that officers might be appointed by a single, responsible person.
Doctor FRANKLIN observed, that two modes of choosing the Judges had been mentioned, to wit, by the Legislature, and by the Executive. He wished such other modes to be suggested as might occur to other gentlemen; it being a point of great moment. He would mention one which he had understood was practised in Scotland. He then, in a brief and entertaining manner, related a Scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession, in order to get rid of him, and share his practice among themselves. It was here, he said, the interest of the electors to make the best choice, which should always be made the case if possible.

South Carolina delegate Pierce Butler appealed to the Athenian lawmaker Solon to support Butler’s view that the people wouldn’t favor a federal judiciary.

Mr. BUTLER. The people will not bear such innovations. The States will revolt at such encroachments. Supposing such an establishment to be useful, we must not venture on it. We must follow the example of Solon, who gave the Athenians not the best government he could devise, but the best they would receive.

If the delegates wanted to go to Moses and Exodus 18, today would have been a good day for it since they debated the creation of a judicial system throughout the nation. However, there was no mention of Moses or his scheme for addressing the disputes of the Jewish people.
 
To read all of the posts in this series from May 25 to the present, click here.

On June 2, 1787, PA delegate James Wilson read a paper written by the elder statesman of the Constitutional Convention, Benjamin Franklin, which made a case against paying the chief executive a salary. While Franklin thought the executive should be reimbursed for expenses incurred while serving, he did not believe a salary would bring out the best candidates. In fact, he was direct about the kind of people who would seek an office promising power and money.

And of what kind are the men that will strive for this profitable pre-eminence, through all the bustle of cabal, the heat of contention, the infinite mutual abuse of parties, tearing to pieces the best of characters? It will not be the wise and moderate, the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your government, and be your rulers. And these, too, will be mistaken in the expected happiness of their situation: for their vanquished competitors, of the same spirit, and from the same motives, will perpetually be endeavoring to distress their administration, thwart their measures, and render them odious to the people.

Franklin’s prophecy seems remarkably accurate regarding the present occupant of the White House. Franklin is correct that some who oppose Trump now do so because of similar motives. However, Trump hasn’t needed much of their help to “distress” his administration and render himself “odious to the people.”
The president’s salary isn’t high enough now to compete with private sector work but in our day the payoff comes in other ways. Trump’s position has already benefited his family and charges of kleptocracy are not far fetched. Former presidents (e.g., Clinton) have used their influence and position to tally up millions in speeches. One crisis of the last election was that so many people didn’t want to vote for either candidate. I hope we have a better choice next time around.

June 4, 1787
During this session, the delegates engaged in debate over the executive branch and agreed on a single executive with veto power over legislation. They decided that vetoes should be subject to a 2/3 vote by each branch to override. The delegates also agreed to a national judiciary.
The experience of the states was cited by at least two delegates in favor of a single executive magistrate. Roger Sherman agreed with the single magistrate but called for a council of advisors for the single executive using the states and Great Britain as illustrations.

Mr. Sherman. This matter is of great importance and ought to be well considered before it is determined. Mr. Wilson he said had observed that in each State a single magistrate was placed at the head of the Govt. It was so he admitted, and properly so, and he wished the same policy to prevail in the federal Govt. But then it should be also remarked that in a all the States there was a Council of advice, without which the first magistrate could not act. A Council he thought necessary to make the establishment acceptable to the people. Even in G. B. the King has a council; and though he appoints it himself, its advice has its weight with him, and attracts the Confidence of the people.
It was mentioned (by Col: Hamilton) that the King of G. B. had not exerted his negative since the Revolution.

The delegates mentioned Britain three more times as a part of the debate. Rather than appeal to any biblical principle, the delegates seemed more concerned about avoiding the problems experienced in Britain. For another example, delegate Butler said:

Mr. Butler had been in favor of a single Executive Magistrate; but could he have entertained an idea that a compleat negative on the laws was to be given him he certainly should have acted very differently. It had been observed that in all countries the Executive power is in a constant course of increase. This was certainly the case in G. B. Gentlemen seemed to think that we had nothing to apprehend from an abuse of the Executive power. But why might not a Cataline or a Cromwell arise in this Country as well as in others.

Mason had significant worries about the government being an elective monarchy:

Col. Mason observed that a vote had already passed he found (he was out at the time) for vesting the executive powers in a single person. Among these powers was that of appointing to offices in certain cases. The probable abuses of a negative had been well explained by Dr. F as proved by experience, the best of all tests. Will not the same door be opened here. The Executive may refuse its assent to necessary measures till new appointments shall be referred to him; and having by degrees engrossed all these into his own hands, the American Executive, like the British, will by bribery & influence, save himself the trouble & odium of exerting his negative afterwards. We are Mr. Chairman going very far in this business. We are not indeed constituting a British Government, but a more dangerous monarchy, an elective one. We are introducing a new principle into our system, and not necessary as in the British Govt. where the Executive has greater rights to defend. Do gentlemen mean to pave the way to hereditary Monarchy? Do they flatter themselves that the people will ever consent to such an innovation? If they do I venture to tell them, they are mistaken. The people never will consent.

Franklin appealed to the experience of the Netherlands in order to advocate against an executive with too much power.
According to delegate Pierce, James Madison made a speech which appealed to the ancient republics (Madison included some of this in his June 6 entry):

Mr. Maddison in a very able and ingenious Speech, ran through the whole Scheme of the Government, — pointed out all the beauties and defects of ancient Republics; compared their situation with ours wherever it appeared to bear any anology, and proved that the only way to make a Government answer all the end of its institution was to collect the wisdom of its several parts in aid of each other whenever it was necessary. Hence the propriety of incorporating the Judicial with the Executive in the revision of the Laws. He was of opinion that by joining the Judges with the Supreme Executive Magistrate would be strictly proper, and would by no means interfere with that indepence so much to be approved and distinguished in the several departments.

Mason again referred to historical republics without mentioning the Hebrews.

Yet perhaps a little reflection may incline us to doubt whether these advantages are not greater in theory than in practice, or lead us to enquire whether there is not some pervading principle in republican government which sets at naught and tramples upon this boasted superiority, as hath been experienced to their cost, by most monarchies which have been imprudent enough to invade or attack their republican neighbors. This invincible principle is to be found in the love, the affection, the attachment of the citizens to their laws, to their freedom, and to their country. Every husbandman will be quickly converted into a soldier when he knows and feels that he is to fight not in defence of the rights of a particular family, or a prince, but for his own. This is the true construction of the pro aris et focis which has, in all ages, performed such wonders. It was this which in ancient times enabled the little cluster of Grecian republics to resist, and almost constantly to defeat, the Persian monarch. It was this which supported the States of Holland against a body of veteran troops through a thirty years’ war with Spain, then the greatest monarchy in Europe, and finally rendered them victorious. It is this which preserves the freedom and independence of the Swiss Cantons in the midst of the most powerful nations. And who that reflects seriously upon the situation of America, in the beginning of the late war — without arms — without soldiers — without trade, money or credit, in a manner destitute of all resources, [113] but must ascribe our success to this pervading, all-powerful principle?

See also Ferrand’s record of this day.