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between them seemed to consist chiefly in two circumstances,-first, the collective interest and security were much more in the power belonging to the Executive, than to the Judiciary, department; secondly, in the administration of the former, much greater latitude is left to opinion and discretion, than in the administration of the latter. But if the second consideration proves that it will be more difficult to establish a rule sufficiently precise for trying the Executive, than the Judges, and 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 and Legislative
powers, than between the Judiciary and Legislative powers. He conceived it to be absolutely necessary to a well constituted Republic, that the two first should be kept distinct and 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 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 departinents.
Colonel 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 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 behaviour 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.
Mr. 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 government 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 and encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of republican govern ment 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.
MR. GOUVERNEUR MORRIS was as little a friend to monarchy as any gentleman. He concurred in the opinion that the way to keep out monarchical government was to establish such a Republican government as would make the people happy, and prevent a desire of change.
Doct. McClurg was not so much afraid of the shadow of monarchy, as to be unwilling to approach it; nor so wedded to republican government, as not to be sensible of the tyrannies that had been and 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 behaviour.
On the question for inserting during good behaviour,” in place of “seven years [with a re-eligibility],” it passed in the negative, New Jersey, Pennsylvania, Delaware, Virginia, aye—4; Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, no-6.*
On the motion to strike out“ seven years," it passed in the negative, ---Massachusetts, Pennsylvania, Delaware, North Carolina, aye—4; Connecticut, New Jersey, Maryland, Virginia, South Carolina, Georgia, no~6.7
* This vote is not to be considered as any certain index of opinion, as a number in the affirmative probably had it chiefly in view to aların those attached to a dependence of the Executive on the Legislature, and 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 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 adınitted as the true basis of a well constructed Government.
+ 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 embarrass the plan of referring the appointment and dependence of the Executive to the Legislature.
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.
WEDNESDAY July 18th.
In Convention,-On motion of Mr. L. MARTIN to fix to-morrow for reconsidering the vote concerning the ineligibility of the Executive a second time, it passed in the affirmative,--Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, aye-8; New Jersey, Georgia, absent.
The residue of the ninth Resolution, concerning the Executive, was postponed till to-morrow.
The tenth Resolution, “ that the Executive shall have a right to negative legislative acts not afterwards passed by two-thirds of each branch,” was passed, nem. con.
The eleventh Resolution, “that a National Judiciary shall be established to consist of one supreme tribunal,” agreed to nem. con.
On the clause, “The judges of which to be appointed by the second branch of the National Legislature,”:
Mr. Gorham would prefer an appointment by the second branch to an appointment 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 Executive with the advice and consent of the second branch, in the mode prescribed by the Constitution of Massachusetts. This mode had been long practised in that country, and was found to answer perfectly well.
Mr. Wilson would still prefer an appointment by the Executive; but if that could not be attained, would prefer, in the next place, the mode suggested by Mr. Gorham. He thought it his duty, however, to move in the first instance, “that the Judges be appointed by the Executive.”
Mr. GOUVERNEUR MORRIS seconded the motion.
Mr. L. MARTIN was strenuous for an appointment by the second branch. Being taken from all the the States, it would be best informed of characters, and most capable of making a fit choice.
Mr. SHERMAN concurred in the observations of Mr. Martin, adding that the Judges ought to be diffused, which would be more likely to be attended to by the second branch, than by the Executive.
Mr. 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 against referring the appointment to the Executive. He mentioned, as one, that as the seat of government must be in some one State; and as the Executive would remain in office for a considerable time, for four, five, or six years at least, he would insensibly form local and personal attachments within the particular