35 able, but that was because they held their place during good behavior and "[i]t is necessary therefore that a forum should be established for trying misbehaviour." (II:66) The executive, like the legislature and the Senate in particular, would hold office for a limited term of six years; "he would periodically be tried for his behaviour by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it." Like legislators, therefore, "he ought to be subject to no intermediate trial, by impeachment." (II: 67) Impeachment is proper to secure good behavior of those holding their office for life; it is unnecessary for any officer who is elected for a limited term, "the periodical responsibility to the electors being an equivalent security." (II:68) King also suggested that it would be "most agreeable to him" if the executive's tenure in office were good behaviour; and impeachment would be appropriate in this case, "provided an independent and effectual forum could be advised." He should not be impeachable by the legislature, for this "would be destructive of his independence and of the principles of the Constitution." (II:67) Edmund Randolph agreed that it was necessary to proceed "with a cautious hand" and to exclude "as much as possible the influence of the Legislature from the business." He favored impeachment, however: The propriety of impeachments was a favorite principle with him; Guilt wherever found ought to be punished. The Executive will have great opportunitys of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands. Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections. (II:67) Charles Pinckney rejoined that the powers of the Executive "would be so circumscribed as to render impeachment unnecessary," (II:68) SELECTION OF THE EXECUTIVE On July 24, the decision to have electors choose the executive was reconsidered, and the national legislature was again substituted, seven states to four. (II:101) It was then moved to reinstate the one-term limitation, which led to discussion and motions with respect to the length of his term-eleven years, fifteen years, twenty years ("the medium life of princes"-a suggestion possibly meant, according to Madison's journal, "as a caricature of the previous motions"), and eight years were offered. (II:102) James Wilson proposed election for a term of six years by a small number of members of the legislature selected by lot. (II:103) The election of the executive was unanimously postponed. (II:106) On July 25, the Convention rejected, four states to seven, a proposal for appointment by the legislature unless the incumbent were reeligible in which case the choice would be made by electors appointed by the state legislatures. (II:111) It then rejected, five states to six, Pinckney's proposal for election by the legislature, with no person eligible for more than six years in any twelve. (II:115) The debate continued on the 26th, and George Mason suggested reinstituting the original mode of election and term reported by the Committee of the Whole (appointment by the legislature, a seven-year term, with no reeligibility for a second term). (II:118-19) This was 36 agreed to, seven states to three. (II:120) The entire resolution on the executive was then adopted (six states to three) and referred to a five member Committee on Detail to prepare a draft Constitution. (II:121) PROVISIONS IN THE DRAFT OF AUGUST 6 The Committee on Detail reported a draft on August 6. It included the following provisions with respect to impeachment: The House of Representatives shall have the sole power of impeachment. (Art. IV, sec. 6) [The President] shall have power to grant reprieves and The Jurisdiction of the Supreme Court shall extend . ... The trial of all criminal offences (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by Jury. (Art. XI, sec. 4) Judgment, in cases of Impeachment, shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of honour, trust, or profit, under the United States. But the party convicted shall, nevertheless be liable and subject to indictment, trial, judgment and punishment according to law. (Art. XI, sec. 5) (II: 178-79, 185-87) The draft provided, with respect to the executive: The Executive Power of the United States shall be vested in a single person. His stile shall be "The President of the United States of America ;" and his title shall be, "His Excellency". He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time. (Art. X, sec. 1) (II: 185) Article IV, section 6 was unanimously agreed to by the Convention on August 9. (II: 231) On August 22, a prohibition of bills of attainder and ex post facto laws was voted, the first unanimously and the second seven states to three. (II: 376) On August 24, the Convention considered Article X, dealing with the Executive. It unanimously approved vesting the power in a single person. (II: 401) It rejected, nine states to two, a motion for election "by the people" rather than by the Legislature. (II:402) It then amended the provision to provide for "joint ballot" (seven states to four), rejected each state having one vote (five states to six), and added language requiring a majority of the votes of the members present for election (ten states to one). (II:403) Gouverneur Morris proposed election by "Electors to be chosen by the people of the several States," which failed five states 37 to six; then a vote on the "abstract question" of selection by electors failed, the States being evenly divided (four states for, four opposed, two divided, and Massachusetts absent). (II: 404) On August 25, the clause giving the President pardon power was unanimously amended so that cases of impeachment were excepted, rather than a pardon not being pleadable in bar of impeachment. (II: 419-20) On August 27, the impeachment provision of Article X was unanimously postponed at the instance of Gouverneur Morris, who thought the Supreme Court an improper tribunal. (II: 427) A proposal to make judges removable by the Executive on the application of the Senate and House was rejected, one state to seven. (II: 429) EXTRADITION: "HIGH MISDEMEANOR" On August 28, the Convention unanimously amended the extradition clause, which referred to any person "charged with treason, felony or high misdemeanor in any State, who shall flee from justice" to strike "high misdemeanor" and insert "other crime." The change was made "in order to comprehend all proper cases: it being doubtful whether 'high misdemeanor' had not a technical meaning too limited." (II: 443) FORUM FOR TRIAL OF IMPEACHMENTS On August 31, those parts of the Constitution that had been postponed were referred to a committee with one member from each statethe Committee of Eleven. (II: 473) On September 4, the Committee reported to the Convention. It proposed that the Senate have power to try all impeachments, with concurrence of two-thirds of the members present required for a person to be convicted. The provisions concerning election of the President and his term in office were essentially what was finally adopted in the Constitution, except that the Senate was given the power to choose among the five receiving the most electoral votes if none had a majority. (II: 496-99) The office of Vice President was created, and it was provided that he should be ex officio President of the Senate, "except when they sit to try the impeachment of the President, in which case the Chief Justice shall preside." (II:498) The provision for impeachment of the President was amended to delete "corruption" as a ground for removal, reading: He shall be removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for treason, or bribery....(II:499) The Convention postponed the Committee's provision making the Senate the tribunal for impeachments "in order to decide previously on the mode of electing the President." (II:499) SELECTION OF THE PRESIDENT Gouverneur Morris explained "the reasons of the Committee and his own" for the mode of election of the President: The 1st was the danger of intrigue & faction if the appointmt. 38 3 The difficulty of establishing a Court of Impeachments, The "great evil of cabal was avoided" because the electors would vote at the same time throughout the country at a great distance from each other; "[i]t would be impossible also to corrupt them." A conclusive reason, said Gouverneur Morris, for having the Senate the judge of impeachments rather than the Supreme Court was that the Court "was to try the President after the trial of the impeachment." (II:500) Objections were made that the Senate would almost always choose the President. Charles Pinckney asserted, "It makes the same body of men which will in fact elect the President his Judges in case of an impeachment." (II:501) James Wilson and Edmund Randolph suggested that the eventual selection should be referred to the whole legislature, not just the Senate; Gouverneur Morris responded that the Senate was preferred "because fewer could then, say to the President, you owe your appointment to us. He thought the President would not depend so much on the Senate for his re-appointment as on his general good conduct." (II:502) Further consideration on the report was postponed until the following day. On September 5 and 6, a substantial number of amendments were proposed. The most important, adopted by a vote of ten states to one, provided that the House, rather than the Senate, should choose in the event no person received a majority of the electoral votes, with the representation from each state having one vote, and a quorum of two-thirds of the states being required. (II: 527-28) This amendment was supported as "lessening the aristocratic influence of the Senate," in the words of George Mason. Earlier, James Wilson had criticized the report of the Committee of Eleven as "having a dangerous tendency to aristocracy; as throwing a dangerous power into the hands of the Senate." who would have, in fact, the appointment of the President, and through his dependence on them the virtual appointment to other offices (including the judiciary), would make treaties, and would try all impeachments. "[T]he Legislative, Executive & Judiciary powers are all blended in one branch of the Government.... [The President will not be the man of the people as he ought to be, but the Minion of the Senate." (II: 522–23) ADOPTION OF "HIGH CRIMES AND MISDEMEANORS" On September 8, the Convention considered the clause referring to impeachment and removal of the President for treason and bribery. George Mason asked, "Why is the provision restrained to Treason & bribery only?" Treason as defined by the Constitution, he said, "will not reach many great and dangerous offenses. . . . Attempts to subvert the Constitution may not be Treason . . ." Not only was treason limited, but it was "the more necessary to extend: the power of impeachments" because bills of attainder were forbidden. Mason moved to add "maladministration" after "bribery". (II:550) 39 James Madison commented, "So vague a term will be equivalent to a tenure during pleasure of the Senate," and Mason withdrew "maladministration" and substituted "high crimes & misdemeanors agst. the State." This term was adopted, eight states to three. (II: 550) TRIAL OF IMPEACHMENTS BY THE SENATE Madison then objected to trial of the President by the Senate and after discussion moved to strike the provision, stating a preference for a tribunal of which the Supreme Court formed a part. He objected to trial by the Senate, "especially as [the President] was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemeanor. The President under these circumstances was made improperly dependent." (II: 551) Gouverneur Morris (who had said of "maladministration" that it would "not be put in force and can do no harm"; an election every four years would "prevent maladministration" II: 550) argued that no tribunal other than the Senate could be trusted. The Supreme Court, he said, "were too few in number and might be warped or corrupted." He was against a dependence of the executive on the legislature, and considered legislative tyranny the great danger. But, he argued, "there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out." (II: 551) Charles Pinckney opposed the Senate as the court of impeachments because it would make the President too dependent on the legislature. "If he opposes a favorite law, the two Houses will combine against him, and under the influence of heat and faction throws him out of office." Hugh Williamson of North Carolina replied that there was "more danger of too much lenity than of too much rigour towards the President," considering the number of respects in which the Senate was associated with the President. (II:51) After Madison's motion to strike out the provision for trial by the Senate failed, it was unanimously agreed to strike "State" and insert "United States" after "misdemeanors against," "in order to remove ambiguity." (II:551) It was then agreed to add: "The vice-President and other Civil officers of the U.S. shall be removed from office on impeachment and conviction as aforesaid." Gouverneur Morris moved to add a requirement that members of the Senate would be on oath in an impeachment trial, which was agreed to, and the Convention then voted, nine states to two, to agree to the clause for trial by the Senate. (II: 552-53) COMMITTEE ON STYLE AND ARRANGEMENT A five member Committee on Style and Arrangement was appointed by ballot to arrange and revise the language of the articles agreed to by the Convention. (II:553) The Committee reported a draft on September 12. The Committee, which made numerous changes to shorten and tighten the language of the Constitution, had dropped the expression "against the United States" from the description of grounds for impeachment, so the clause read, "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high Crimes and Misdemeanors." (II:600) |