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. 3 The difficulty of establishing a Court of Impeachments, other than the Senate which would not be so proper for the trial nor the other branch for the impeachment of the President, if appointed by the Legislature, 4 No body had appeared to be satisfied with an appointment by the Legislature. 5. Many were anxious even for an immediate choice by the people-6-the indispensible necessity of making the Executive independent of the Legislature. (II:500) 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: "[ilt 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. . . . [T]he 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) 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) SUSPENSION UPON IMPEACHMENT On September 14, John Rutledge and Gouverneur Morris moved "that persons impeached be suspended from their office until they be tried and acquitted. (II: 612) Madison objected that the President was already made too dependent on the legislature by the power of one branch to try him in consequence of an impeachment by the other. Suspension he argued, "will put him in the power of one branch only," which can at any moment vote a temporary removal of the President in order "to make way for the functions of another who will be more favorable to their views." The motion was defeated, three states to eight. (II: 613). No further changes were made with respect to the impeachment provision or the election of the President. On September 15, the Constitution was agreed to, and on September 17 it was signed and the Convention adjourned. (II: 650) APPENDIX B AMERICAN IMPEACHMENT CASES 1. SENATOR WILLIAM BLOUNT (1797-1799) a. Proceedings in the House The House adopted a resolution in 1797 authorizing a select committee to examine a presidential message and accompanying papers regarding the conduct of Senator Blount.1 The committee reported a resolution that Blount "be impeached for high crimes and misdemeanors," which was adopted without debate or division.2 b. Articles of Impeachment Five articles of impeachment were agreed to by the House without amendment (except a "mere verbal one").3 Article I charged that Blount, knowing that the United States was at peace with Spain and that Spain and Great Britain were at war with each other, "but disregarding the duties and obligations of his high station, and designing and intending to disturb the peace and tranquillity of the United States, and to violate and infringe the neutrality thereof," conspired and contrived to promote a hostile military expedition against the Spanish possessions of Louisiana and Florida for the purpose of wresting them from Spain and conquering them for Great Britain. This was alleged to be "contrary to the duty of his trust and station as a Senator of the United States, in violation of the obligations of neutrality, and against the laws of the United States, and the peace and interests thereof." Article II charged that Blount knowing of a treaty between the United States and Spain and "disregarding his high station, and the stipulations of the... treaty, and the obligations of neutrality," conspired to engage the Creek and Cherokee nations in the expedition against Louisiana and Florida. This was alleged to be contrary to Blount's duty of trust and station as a Senator, in violation of the treaty and of the obligations of neutrality, and against the laws, peace, and interest of the United States. Article III alleged that Blount, knowing that the President was empowered by act of Congress to appoint temporary agents to reside among the Indians in order to secure the continuance of their friendship and that the President had appointed a principal temporary agent, "in the prosecution of his criminal designs and of his conspiracies" conspired and contrived to alienate the tribes from the President's agent and to diminish and impair his influence with the tribes, "contrary to the duty of his trust and station as a Senator and the peace and interests of the United States." 15 ANNALS OF CONG. 440-41 (1797). 2 Id. 459. 3 Id. 951. (41) |