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tions. They were too much influenced by their partialities. The candidate was present who had a talent for business in the legislative fieldwho had, perhaps, assisted ignorant members in business of their own," &c., “would, without any of the essential qualifications for an expositor of the laws, prevail over a competitor not having these recommendations, but possessed of every necessary qualification." He proposed, therefore, that the Senate should elect them, and his motion was agreed to nem. con. 5 Elliott's Deb., 188.
Subsequent to this decision, when the subject again came under consideration, Mr. Gorham "suggested that the judges be appointed by the Executive, with the advice and consent of the second branch, in the mode prescribed by the Constitution of Massachusetts." Mr. Wilson thought it bis duty to move, in the first instance, “ that the judges be appointed by the Executive,” which was seconded by Gouverneur Morris. Luther Martin was strenuous for an appointment by the second branch," and Roger Sherman “concurred in the observations of Mr. Martin.” Mr. Mason thought there were "insuperable objections” to giving "the appointment to the Executive." Mr. Gorham said: “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;" that "public bodies feel no personal responsibility, and give full play to intrigue and cabal ;” and he referred to Rhode Island as a "full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a public body may carry wickedness and cabal.” Mr. Madison "suggested that the judges might be appointed by the Executive, with the concurrence of one-third at least of the second branch.” Mr. Sherman "was clearly for an election by the Senate." Mr. Randolph preferred the Senate. Mr. Bedford “thought there were solid reasons against leaving the appointment to the Executive.” On the question of giving the appointments to the Executive, Massachusetts and Pennsylvania voted in the affirmative, and six of the other States in the negative; and on the question of the President, by and with the advice and consent of the Senate, making the appointments, Massachusetts, Pennsylvania, Maryland and Virginia, voted in the affirmative, and Connecticut, Delaware, North and South Carolina in the negative, the members from Georgia being absent. Ibid., 328. Finally, it was agreed, ħowever, to give to the Executive the appointment of "ambassadors, other public ministers and consuls, judges of the Supreme court, and all other officers,” to be confirmed by the Senate, whose appointments were not otherwise provided for.
How far the State governments have been improved by modern innovations may well be questioned. South Carolina is now the only State
in which the Executive is not chosen by a popular vote; and the change, in this respect, is generally regarded as an improvement. But the change made in many of the States in the manner of selecting judges is a mooted point, and it is by no means certain that the character of the Judiciary has been improved. In arguing the case of Groves, et. al., v. Slaughter, before the United States Supreme court, Henry Clay is reported to have used the following emphatic language, showing what were his views as to this modern change of State polity : “I hope never to live in a State where the judges are elected, and where the period for which they hold their offices is limited, so that elections are constantly recurring." Peters, vol. xv., p. 486.
In many of the States, this important trust of patronage still is deemed safest where the primary constitutions lodged it. In Maine, the judges are still appointed by the Governor, by and with the advice and consent of the Council; in Massachusetts, the same; so in New Hampshire ; in Vermont, they are chosen by the Legislature; in Connecticut, the same; so in Virginia and some other States; in New York, Pennsylvania, Ohio, Wisconsin and other States, they are however now elected by the people.
But few of the civil or military officers are now appointed by the Executive, or elected by the Legislature, in any of the States. Nearly all are now chosen by a popular vote. Mr. Warner thinks “liberty bas no concern in the matter, beyond the choice of the two legislative houses ;" because “to control the head, is to control the body," and that it is “enough for the people, at all events, to have both the Legislature and the Chief Executive directly dependent on their votes." Though this may be all true, and though the primary mode may have, as he says, "saved the people trouble," and it may have “promoted their interests, without a particle of danger to liberty in any quarter," it is no less true that the people now generally prefer to have the exercise of this power in their own hands, and that they have thus far shown themselves abundantly able to discharge it. But having assumed it in the States, it by no means follows that they should exercise it under the General Government, as the Free German Associations now wish to do.
TÉRM AND TENURE OF OFFICE.
The terms and tenures of office, as agreed upon by the framers of the Federal Constitution, and which are deemed so unreasonable by the reformers of the present day, were as follows : That the President “shall hold his office during the term of four years;" that senators shall be chosen for six years, and “the House of Representatives shall be composed of members chosen every second year;" and that “the judges, both of the Supreme and Inferior courts, shall hold their offices during good behavior.”
This result was arrived at after a full discussion of the various plans proposed. Edmund Randolph, in the scheme submitted by him, fixed no definite term for the Executive, por for senators. The latter, he proposed should “hold their offices for a term sufficient to insure their independency,” and the judges "during good behavior." Charles Pinekney's plan fixed no definite tenure for the Executive, Senate or House of Representatives, but also proposed that the judges should hold their offices "during good behavior.” The plan proposed by Mr. Patterson, as a substitute for Mr. Randolph's, also favored a life-tenure for the judges. Col. Hamilton, in his paper, which he read to the Convention as embodying his views as to the form that the Constitution should assume, proposed that the Executive, senators and judges, should hold their offices" during good behavior," and the members of the House of Representatives for three years ; and in a speech made by him, reviewing the plans submitted by Messrs. Randolph and Patterson, he spoke as follows:
This view of the subject almost led him to despair that a republican government could be established over so great an extent. He was sensible, at the same time, that it would be unwise to propose one of any other form. In his private opinion, he had no scruple in declaring, supported as he was by the opinion of su many of the wise and good, that the British government was the best in the world; and he doubted much whether any thing short of it would do in America. He hoped gentlemen of different opinions would bear with him in this, and begged them to recollect the change of opinion on this subject which had taken place, and was still going on. It was once thought that the power of Congress was amply sufficient to secure the end of this institution. The error was now seen by every one. The members most tenacious of republicanism, he observed, were as loud as any in declaiming against the vices of democracy.
Let one branch of the Legislature hold their places for life, or at least during good behavior. Let the Executive, also, be for life. He appealed to the feelings of the mem
bers, present, whether a term of seven years would induce the sacrifices of private affairs which an acceptance of public trust would require, so as to insure the services of the best citizens. On this plan, we should have in the Senate a permanent will, a weighty interest, which would answer essential purposes. But is this a republican government ? it will be asked. Yes, if all the magistrates are appointed and vacancies are filled by the people, or a process of election originating with the people. He was sensible that an Executive, constituted as he proposed, would have in fact but little of the power and independence that might be necessary. On the other plan, of appointing him for seven years, he thought the Executive ought to have but little power,. He would be ambitious, with the means of making creatures, and as the object of his ambition would be to prolong his power, it is probable that, in case of war he would avail himself of the emer. gency, to evade or refuse a degradation from his place. An Executive for life has not this motive for forgetting his fidelity, and will therefore be a safer depository of power. It will be objected, probably, that such an Executive would be an elective monarch, and will give birth to the tumults which characterize that form of government. He would reply, that monarch is an indefinite term. It marks not either the degree or duration of power.. If this Executive magistrate would be a monarch for life, the other proposed by the report from the Committee of the Whole would be a monarch for seven years, The circumstance of being elective was also applicable to both. It had been observed, by judicious writers, that elective monarchies would be the best if they could be guarded against the tumults excited by the ambition and intrigues of competitors. He was not sure that tumults were an insuperable evil. He thought this character of elective monarchies had been taken rather from particular cases than from general principles. The election of Roman Emperors was made by the army. In Polund, the election is made by great rival princes, with independent power, and ample means of raising commotions. In the German empire, the appointment is made by, the electors and princes, who have equal motives and means for exciting cabals and parties. Might not such a mode of election be devised, among ourselves, as will defend the community against these defects in any dangerous degree? Having made these observations, he would read to the committee a sketch of a plan which he should prefer to either of those under consideration. He was aware that it went beyond the ideas of most members. But will such a plan be adopted out of doors ? In return he would ask, will the people adopt the other plan? At present, they will adopt neither. But he sees the Union dissolving, or already dissolved—he sees evils operating in the States which must soon cure the people of their fondness for democracies-he sees that a great progress has been already made, and is still going on in the public mind. He thinks, therefore, that the people will in time be unshackled from their prejudices, and whenever that happens, they will themselves not be satisfied at stopping where the plan of Mr. Randolph would place them, but be ready to go as far at least as he proposes. He did not mean to offer the paper he had sketched as a proposition to that committee. It was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. Randolph, in the proper stages of its future discussion. 5 Elliott's Debates, 203.
When that part of Mr. Randolph's resolution relating to the tenure of the Executive came under consideration, Mr. Wilson moved “that the blank for the time of duration should be filled with three years," observing, at the same time, that he preferred this short period on the supposition that a re-eligibility would be provided for. Mr. Pinckney moved for
seven years. Mr. Sherman was for three years, and against the doctrine of rotation, as throwing out of office the men best qualified to execute its duties. Mr. Mason was for seven years at least, and for prohibiting a re-eligibility, as the best expedient, both for preventing the effect of a false complaisance on the side of the Legislature towards anfit characters, and a temptation on the side of the Executive to intrigue with the Legislature for a reappointment. Mr. Bedford was strongly opposed to so long a term as seven years. He begged the committee to consider what the situation of the country would be, in case the first magistrate should be saddled on it for such a period, and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. An impeachment, he said, would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. He was for a triennial election, and for an ineligibility after a period of nine years. On the question for seven years—New York, New Jersey, Pennsylvania, Delaware, Virginia, aye, 5; Connecticut, North Carolina, South Carolina, Georgia, no, 4; Massachusetts, divided. 5 Elliott's Deb., 142.
Subsequently the following discussion took place :
Dr. McClurg moved to strike out “ seven years," and insert “ during good behavior." By striking out the words declaring him not re-eligible, he was put in a position that would keep him dependent forever on the Legislature ; and he conceived the indepen. dence of the Executive to be equally essential with that of the Judiciary department.
Mr. Gouverneur Morris seconded the motion. He expressed great pleasure in hearing it. This was the way to get a good government. His fear that so valuable an ingre. dient 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.
Mr. Broome highly approved the motion. It obviated all his difficulties.
Mr. Sherman considered such a tenure as by no means safe or admissible. As the Executive magistrate is not re-eligible, he will be on good behavior as far as will be nécessary. If he behavés well, he will be continued ; if otherwise, displaced, on a succeeding election.
Mr. Madison. If it be essential to the preservation of liberty that the legislative, executive, and 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 Legislature, if dependent on the pleasure of that branch for a reappointment.
Whether the plan proposed by the motion was a proper one, was another question, as it depended on the practicability of instituting a tribunal for impeachments as certain and as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing and discussion, until a less objectionable expedient should be applied for guarding against a dangerous union of the legislative and executive departments.
Col. Mason. This motion was made some time ago, and negatived by a very large majority. He trusted that it would be again negatived. It would be impossible to