The Journal of the Debates in the Convention which framed the Constitution of USA Volume I Part 39

"to appoint to offices in cases not otherwise provided for,"--agreed to nem. con.

"to be ineligible a second time"--M^r Houston moved to strike out this clause.

M^r Sherman 2^{ds} the motion.

M^r Gov^r Morris espoused the motion. The ineligibility proposed by the clause as it stood tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun s.h.i.+nes.

On the question for striking out, as moved by M^r Houston, it pa.s.sed in the affirmative

Mas. ay. Con^t ay. N. J. ay. P^a ay. Del. no. M^d ay. V^a no. N.

C. no. S. C. no. Geo. ay.

"For the term of 7 years," resumed.

M^r Broom was for a shorter term since the Executive Magistrate was now to be re-eligible. Had he remained ineligible a 2^d time, he should have preferred a longer term.

Doc^r M^cClurg moved[134] to strike out 7 years, and insert "during good behavior." By striking out the words declaring him not re-eligible, he was put into a situation that would keep him dependent forever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department.

[134] The probable object of this motion was merely to enforce the argument against the re-eligibility of the Executive magistrate by holding out a tenure during good behaviour as the alternate for keeping him independent of the legislature.--Note in Madison's handwriting.

M^r Gov^r Morris 2^{ded} the motion. He expressed great pleasure in hearing it. This was the way to get a good Government. His fear that so valuable an ingredient would not be attained had led him to take the part he had done. He was indifferent how the Executive should be chosen, provided he held his place by this tenure.

M^r Broome highly approved the motion. It obviated all his difficulties

M^r Sherman considered such a tenure as by no means safe or admissible.

As the Executive Magistrate is now re-eligible, he will be on good behavior as far as will be necessary. If he behaves well he will be continued; if otherwise, displaced, on a succeeding election.

M^r Madison.[135] If it be essential to the preservation of liberty that the Legisl: Execut: & Judiciary powers be separate, it is essential to a maintenance of the separation, that they should be independent of each other. The Executive could not be independent of the Legislure, if dependent on the pleasure of that branch for a re-appointment. Why was it determined that the Judges should not hold their places by such a tenure? Because they might be tempted to cultivate the Legislature, by an undue complaisance, and thus render the Legislature the virtual expositor, as well as the maker of the laws. In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner. There was an a.n.a.logy between the Executive & Judiciary departments in several respects. The latter executed the laws in certain cases as the former did in others. The former expounded & applied them for certain purposes, as the latter did for others. The difference between them seemed to consist chiefly in two circ.u.mstances--1. the collective interest & security were much more in the power belonging to the Executive than to the Judiciary department.

2. in the administration of the former much greater lat.i.tude is left to opinion and discretion than in the administration of the latter. But if the 2^d consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Execut: than the Judges, & forms an objection to the same tenure of office, both considerations prove that it might be more dangerous to suffer a Union between the Executive & Legisl: powers, than between the Judiciary & Legislative powers. He conceived it to be absolutely necessary to a well const.i.tuted Republic that the two first sh^d be kept distinct & independent of each other. Whether the plan proposed by the motion was a proper one was another question, as it depended on the practicability of inst.i.tuting a tribunal for impeachm^{ts} as certain & as adequate in the one case as in the other. On the other hand, respect for the mover ent.i.tled his proposition to a fair hearing & discussion, until a less objectionable expedient should be applied for guarding ag^{st} a dangerous union of the Legislative & Executive departments.

[135] The view here taken of the subject was meant to aid in parrying the animadversions likely to fall on the motion of D^r M^cClurg, for whom J. M. had a particular regard. The Doc^r though possessing talents of the highest order was modest & unaccustomed to exert them in public debate.--Note in Madison's handwriting.

Col. Mason. This motion was made some time ago & negatived by a very large majority. He trusted that it w^d be again negatived. It w^d be impossible to define the misbehaviour in such a manner as to subject it to a proper trial; and perhaps still more impossible to compel so high an offender holding his office by such a tenure to submit to a trial. He considered an Executive during good behavior as a softer name only for an Executive for life. And that the next would be an easy step to hereditary Monarchy. If the motion should finally succeed, he might himself live to see such a Revolution. If he did not it was probable his children or grand children would. He trusted there were few men in that House who wished for it. No state he was sure had so far revolted from Republican principles as to have the least bias in its favor.

M^r Madison, was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience had proved a tendency in our governments to throw all power into the Legislative vortex. The Executives of the States are in general little more than Cyphers; the legislatures omnipotent. If no effectual check be devised for restraining the instability & encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of Republican Gov^t therefore required some expedient for the purpose, but required evidently at the same time that in devising it, the genuine principles of that form should be kept in view.

M^r Gov^r Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchical Gov^t was to establish such a Repub. Gov^t as w^d make the people happy and prevent a desire of change.

Doc^r McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to Republican Gov^t as not to be sensible of the tyrannies that had been & may be exercised under that form. It was an essential object with him to make the Executive independent of the Legislature; and the only mode left for effecting it, after the vote destroying his ineligibility a second time, was to appoint him during good behavior.

On the question for inserting "during good behavior" in place of '7 years (with a re-eligibility)' it pa.s.sed in the negative,

Mas. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay.

N. C. no. S. C. no. Geo. no.[136]

[136] (This vote is not considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to alarm those attached to a dependence of the Executive on the Legislature, & thereby facilitate some final arrangement of a contrary tendency. The avowed friends of an Executive, during good behaviour were not more than three or four, nor is it certain they would finally have adhered to such a tenure, an independence of the three great departments of each other, as far as possible, and the responsibility of all to the will of the community seemed to be generally admitted as the true basis of a well constructed government.)--Note in Madison's hand, except from the words "nor is it certain" etc., which is in the hand of his wife's brother, John C. Payne.

On the motion "to strike out seven years" it pa.s.sed in the negative,

Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N.

C. ay. S. C. no. Geo. no.[137]

[137] (There was no debate on this motion. The apparent object of many in the affirmative was to secure the re-eligibility by shortening the term, and of many in the negative to embarra.s.s the plan of referring the appointment and dependence of the Executive to the Legislature.)--Note in Madison's hand.

It was now unanimously agreed that the vote which had struck out the words "to be ineligible a second time" should be reconsidered to-morrow.

Adj^d.

WEDNESDAY JULY 18. IN CONVENTION.

On motion of M^r L. Martin to fix tomorrow for reconsidering the vote concerning "eligibility of the Exec^{tive} a 2^d time" it pa.s.sed in the affirmative.

Mas. ay. Con^t ay. N. J. absent. P^a ay. Del. ay. M^d ay.

V^a ay. N. C. ay. S. C. ay. Geo. absent.

The residue of the Resol. 9. concerning the Executive was postp^d till tomorrow.

Resol. 10. that Executive sh^l have a right to negative legislative acts not afterwards pa.s.sed by 2/3 of each branch, agreed to nem. con.

Resol. 11. "that a Nat^l Judiciary shall be estab^d to consist of one supreme tribunal", ag^d to nem. con.

"The judges of which to be appoint^d by the 2^d branch of the Nat^l Legislature,"

M^r Ghorum, w^d prefer an appointment by the 2^d branch to an appointm^t by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execu^{ve} with the advice & consent of the 2^d branch, in the mode prescribed by the const.i.tution of Mas^{ts}. This mode had been long practised in that country, & was found to answer perfectly well.

M^r Wilson, still w^d prefer an appointm^t by the Executive; but if that could not be attained, w^d prefer in the next place, the mode suggested by M^r Ghorum. He thought it his duty however to move in the first instance "that the Judges be appointed by the Executive." M^r Gov^r Morris 2^{ded} the motion.

M^r L. Martin was strenuous for an app^t by the 2^d branch. Being taken from all the States it w^d be best informed of characters & most capable of making a fit choice.

M^r Sherman concurred in the observations of M^r Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the 2^d branch, than by the Executive.

M^r Mason. The mode of appointing the Judges may depend in some degree on the mode of trying impeachments of the Executive. If the Judges were to form a tribunal for that purpose, they surely ought not to be appointed by the Executive. There were insuperable objections besides ag^{st} referring the appointment to the Executive. He mentioned as one, that as the Seat of Gov^t must be in some one State, and as the Executive would remain in office for a considerable time, for 4. 5. or 6 years at least, he would insensibly form local & personal attachments within the particular State that would deprive equal merit elsewhere, of an equal chance of promotion.

M^r Ghorum. As the Executive will be responsible in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters. The Senators will be as likely to form their attachments at the seat of Gov^t where they reside, as the Executive. If they cannot get the man of the particular State to which they may respectively belong, they will be indifferent to the rest. Public bodies feel no personal responsibility, and give full play to intrigue & cabal. Rh. Island is a full ill.u.s.tration of the insensibility to character produced by a partic.i.p.ation of numbers in dishonorable measures, and of the length to which a Public body may carry wickedness & cabal.

M^r Gov^r Morris supposed it would be improper for an impeachm^t of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they w^d be much about the Seat of Gov^t they might even be previously consulted & arrangements might be made for a prosecution of the Executive. He thought therefore that no argument could be drawn from the probability of such a plan of impeachments ag^{st} the motion before the House.

M^r Madison suggested that the Judges might be appointed by the Executive, with the concurrence of 1/3 at least, of the 2^d branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2^d branch ag^{st} any incautious or corrupt nomination by the Executive.

M^r Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate.

For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.

M^r Randolph. It is true that when the app^t of the Judges was vested in the 2^d branch an equality of votes had not been given to it. Yet he had rather leave the appointm^t there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving app^{ts} would be more diffusive if they depended on the Senate, the members of which w^d be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened.

M^r Bedford thought there were solid reasons ag^{st} leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.