30 equal basis with large ones and “enable a minority of the people to prevent ye removal of an officer who had rendered himself justly criminal in the eyes of a majority; open the door for intrigues against him in states where his administration, though just, was unpopular; and tempt him to pay court to particular states whose partisans he feared or wished to engage in his behalf. (I:86) Dickenson's motion was rejected, with only Delaware voting for it. (1:87). The Committee of the Whole then voted, seven states to two, that the executive should be made ineligible after seven years (I: 88). On motion of Hugh Williamson of North Carolina, the Committee agreed, apparently without debate, to add the clause "and to be removable on impeachment & conviction of mal-practice or neglect of duty." (1:88) SINGLE EXECUTIVE The Committee then returned to the question whether there should be a single executive. Edmund Randolph argued for a plural exccutive, primarily because "the permanent temper of the people was adverse to the very semblance of Monarchy." (I:88) (He had said on June 1, when the question was first discussed, that he regarded a unity in the executive as "the foetus of monarchy." (I:66)). On June 4, the Committee resumed debate of the issue, with James Wilson making the major argument in favor of a single executive. The motion for a single executive was agreed to, seven states to three. (I:97). George Mason of Virginia was absent when the vote was taken; he returned during debate on giving the executive veto power over legislative acts. In arguing against the executive's appointment and veto power, he commented that the Convention was constituting "a more dangerous monarchy" than the British government, "an elective one." (I:101). He never could agree, he said "to give up all the rights of the people to a single Magistrate. If more than one had been fixed on, greater powers might have been entrusted to the Executive"; and he hoped that the attempt to give such powers would have weight later as an argument for a plural executive. (I:102). On June 13, the Committee of the Whole reported its actions on Randolph's propositions to the Convention. (I: 228-32) On June 15, William Patterson of New Jersey proposed his plan as an alternative. Patterson's resolution called for a federal executive elected by Congress, consisting of an unstated number of persons, to serve for an undesignated term and to be ineligible for a second term, removable by Congress on application by a majority of the executives of the states. The major purpose of the Patterson plan was to preserve the equality of state representation provided in the Articles of Confederation, and it was on this issue that it was rejected. (II: 242–45) The Randolph resolutions called for representation on the basis of population in both houses of the legislature. (I: 229-30) The Patterson resolution was debated in the Committee of the Whole on June 16, 18, and 19. The Committee agreed seven states to three, to re-report Randolph's resolutions as amended, thereby adhering to them in preference to Patterson's. (1:322) 31 SELECTION OF THE EXECUTIVE On July 17, the Convention began debate on Randolph's ninth resolution as amended and reported by the Committee of the Whole. The consideration by the Convention of the resolution began with unanimous agreement that the executive should consist of a single person. (II: 29) The Convention then turned to the mode of election. It voted against election by the people instead of the legislature, proposed by Gouverneur Morris of Pennsylvania, one state to nine. (II: 32) Gouverneur Morris had argued that if the executive were appointed and impeachable by the legislature, he "will be the mere creature" of the legislature (II: 29), a view which James Wilson reiterated, adding that "it was notorious" that the power of appointment to great offices "was most corruptly managed of any that had been committed to legislative bodies." (II: 32) Luther Martin of Maryland then proposed that the executive be chosen by electors appointed by state legislators, which was rejected eight states to two, and election by the legislature was passed unanimously. (II:32) TERM OF THE EXECUTIVE The Convention voted six states to four to strike the clause making the President ineligible for reelection. In support of reeligibility, Gouverneur Morris argued that ineligibility "tended to destroy the great motive to good behaviour, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines." (II:33) The question of the President's term was then considered. A motion to strike the seven year term and insert "during good behavior” failed by a vote of four states to six. (II: 36) In his Journal of the Proceedings, James Madison suggests that the "probable object of this motion was merely to enforce the argument against re-eligibility of the Executive Magistrate, by holding out a tenure during good behavior as the alternative for keeping him independent of the Legislature." (II:33) After this vote, and a vote not to strike seven years, it was unanimously agreed to reconsider the question of the executive's re-eligibility. (II:36) JURISDICTION OF JUDICIARY TO TRY IMPEACHMENTS On July 18, the Convention considered the resolution dealing with the Judiciary. The mode of appointing judges was debated, George Mason suggesting that this question "may depend in some degree on the mode of trying impeachments, of the Executive." If the judges were to try the executive, Mason contended, they surely ought not be appointed by him. Mason opposed executive appointment; Gouverneur Morris, who favored it, agreed that it would be improper for the judges to try an impeachment of the executive, but suggested that this was not an argument against their appointment by the executive. (II: 41-42) Ultimately, after the Convention divided evenly on a 32 proposal for appointment by the Executive with advice and consent of the second branch of the legislature, the question was postponed. (II: 44) The Convention did, however, unanimously agree to strike the language giving the judiciary jurisdiction of "impeachments of national officers." (II: 46) REELECTION OF THE EXECUTIVE On July 19, the Convention again considered the eligibility of the executive for reelection. (II: 51) The debate on this issue reintroduced the question of the mode of election of the executive, and it was unanimously agreed to reconsider generally the constitution of the executive. The debate suggests the extent of the delegates' concern about the independence of the executive from the legislature. Gouverneur Morris, who favored reeligibility, said: One great object of the Executive is to controul the Legis- The ineligibility of the executive for reelection, he argued, “will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. . . . It will tempt him to make the most of the Short space of time allotted him, to accumulate wealth and provide for his friends. . . . It will produce violations of the very Constitution it is meant to secure," as in moments of pressing danger an executive will be kept on despite the forms of the Constitution. And Morris described the impeachability of the executive as "a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature." (II:53) Morris proposed a popularly elected executive, serving for a two year term, eligible for reelection, and not subject to impeachment. He did "not regard... as formidable" the danger of his unimpeachability: There must be certain great officers of State; a minister of The remarks of other delegates also focused on the relationship between appointment by the legislature and reeligibility, and James Wilson remarked that "the unanimous sense" seemed to be that the executive should not be appointed by the legislature unless he was ineligible for a second time. As Elbridge Gerry of Massachusetts remarked, "[Making the executive eligible for reappointment] would make him absolutely dependent." (II:57) Wilson argued for popular election, and Gerry for appointment by electors chosen by the state executives. 33 SELECTION, REELECTION AND TERM OF THE EXECUTIVE Upon reconsidering the mode of appointment, the Convention voted six States to three for appointment by electors and eight States to two that the electors should be chosen by State legislatures. (The ratio of electors among the States was postponed.) It then voted eight States to two against the executive's ineligibility for a second term. (II:58) A seven-year term was rejected, three States to five; and a six-year term adopted, nine States to one (II:58–59). IMPEACHMENT OF THE EXECUTIVE On July 20, the Convention voted on the number of electors for the first election and on the apportionment of electors thereafter. (II:63) It then turned to the provision for removal of the executive on impeachment and conviction for "mal-practice or neglect of duty." After debate, it was agreed to retain the impeachment provision, eight states to two. (II:69) This was the only time during the Convention that the purpose of impeachment was specifically addressed. Charles Pinckney of South Carolina and Gouverneur Morris moved to strike the impeachment clause, Pinckney observing that the executive "[ought not to] be impeachable whilst in office." (A number of State constitutions then provided for impeachment of the executive only after he had left office.) James Wilson and William Davie of North Carolina argued that the executive should be impeachable while in office, Davie commenting: If he be not impeachable whilst in office, he will spare no Davie called his impeachability while in office "an essential security for the good behaviour of the Executive." (II:64) Gouverneur Morris, reiterating his previous argument, contended that the executive "can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be sufficient proof of his innocence." He also questioned whether impeachment would result in suspension of the executive. If it did not, "the mischief will go on"; if it did, "the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach." (II: 64–65) As the debate proceeded, however, Gouverneur Morris changed his mind. During the debate, he admitted "corruption & some few other offenses to be such as ought to be impeachable," but he thought they should be enumerated and defined. (II: 65) By the end of the discussion, he was, he said, "now sensible of the necessity of impeachments, if the Executive was to continue for any time in office." He cited the possibility that the executive might "be bribed by a greater interest to betray his trust." (II:68) While one would think the King of England well secured against bribery, since "[h]e has as it were a fee simple in the whole Kingdom," yet, said Morris, "Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery." (II: 68-69) Other causes of impeachment were "[c]orrupting his electors" and "incapacity," for which "he should be punished not as a man, but as an officer, and punished only by degradation from his office." Morris concluded: "This Magistrate is not the King 34 but the prime-Minister. The people are the King." He added that care should be taken to provide a mode for making him amenable to justice that would not make him dependent on the legislature. (II:69) George Mason of Virginia was a strong advocate of the impeachability of the executive; no point, he said, "is of more importance than that the right of impeachment should be continued": Shall any man be above Justice? Above all shall that man be (This comment was in direct response to Gouverneur Morris's original contention that the executive could "do no criminal act without Coadjutors who may be punished.") Mason went on to say that he favored election of the executive by the legislature, and that one objection to electors was the danger of their being corrupted by the candidates. This, he said, "furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?" (II:65) Benjamin Franklin supported impeachment as "favorable to the Executive." At a time when first magistrates could not formally be brought to justice, "where the chief Magistrate rendered himself obnoxious. . . . recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character." It was best to provide in the Constitution "for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused." (II: 65) James Madison argued that it was "indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate." A limited term "was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers." (II: 65-66) It could not be presumed that all or a majority of a legislative body would lose their capacity to discharge their trust or be bribed to betray it, and the difficulty of acting in concert for purposes of corruption provided a security in their case. But in the case of the Executive to be administered by one man, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic." (II:66) Charles Pinckney reasserted that he did not see the necessity of impeachments and that he was sure "they ought not to issue from the Legislature who would . . . hold them as a rod over the Executive and by that means effectually destroy his independence," rendering his legislative revisionary power in particular altogether insignificant. (II: 66) Elbridge Gerry argued for impeachment as a deterrent: "A good magistrate will not fear them. A bad one ought to be kept in fear of them." He hoped that the maxim that the chief magistrate could do no wrong "would never be adopted here." (II:66) Rufus King argued against impeachment from the principle of the separation of powers. The judiciary, it was said, would be impeach |