Posted on 07/20/2011 2:35:10 AM PDT by Jacquerie
Presidential Electors. How Many? Impeachment. Separation of Powers. Statholder. Mr. Morris & Impeachable Offenses. Executive Salary.
In Convention.
The postponed [FN1] Ratio of Electors for appointing the Executive; to wit 1 for each State whose inhabitants do not exceed 100,000, [FN2] &c. being taken up.
Mr. MADISON observed that this would make in time all or nearly all the States equal. Since there were few that would not in time contain the number of inhabitants intitling them to 3 Electors: that this ratio ought either to be made temporary, or so varied as that it would adjust itself to the growing population of the States.
Mr. GERRY moved that in the 1st. instance the Electors should be allotted to the States in the following ratio: to N. H. 1. Mas. 3. R. I. 1. Cont. 2. N. Y. 2. N. J. 2. Pa. 3. Del. 1. Md. 2. Va. 3. N. C. 2. S. C. 2. Geo. 1.
On the question to postpone in order to take up this motion of Mr. Gerry. It passed in the affirmative. Mas. ay. Cont. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN3]
Mr. ELSEWORTH moved that 2 Electors be allotted to N. H. Some rule ought to be pursued; and N. H. has more than 100,000 inhabitants. He thought it would be proper also to allot 2. to Georgia
Mr. BROOM & Mr. MARTIN moved to postpone Mr. Gerry's allotment of Electors, leaving a fit ratio to be reported by the Committee to be appointed for detailing the Resolutions.
On this motion. Mas. no. Ct. no. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. no. S. C. no. Geo. no. [FN4]
Mr. HOUSTON 2ded. the motion of Mr. Elseworth to add another Elector to N. H. & Georgia. On the Question: Mas. no. Ct. ay. N. J. no. Pa. no. Del. no. Md. no. Va. no. N. C. no. S. C. ay. Geo. ay. [FN5]
Mr. WILLIAMSON moved as an amendment to Mr. Gerry's allotment of Electors in the 1st. instance that in future elections of the Natl. Executive, the number of Electors to be appointed by the several States shall be regulated by their respective numbers of Representatives in the 1st. branch pursuing as nearly as may be the present proportions.
On question on Mr. Gerry's ratio of Electors Mas. ay. Ct. ay. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. no. [FN6] [FN7] "to be removeable on impeachment and conviction for mal practice or neglect of duty." see Resol: 9. [FN8]
Mr. PINKNEY & Mr. Govr. MORRIS moved to strike out this part of the Resolution. Mr. P. observd. he ought not to be impeachable whilst in office
Mr. DAVIE. If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive.
Mr. WILSON concurred in the necessity of making the Executive impeachable whilst in office.
Mr. Govr. MORRIS. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be [FN9] sufficient proof of his innocence. Besides who is to impeach? Is the impeachment to suspend his functions. If it is not the mischief will go on. If it is the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach
Col. MASON. No point 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 above it, who can commit the most extensive injustice? When great crimes were committed he was for punishing the principal as well as the Coadjutors. There had been much debate & difficulty as to the mode of chusing the Executive. He approved of that which had been adopted at first, namely of referring the appointment to the Natl. Legislature. One objection agst. Electors was the danger of their being corrupted by the Candidates; & this 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?
Docr. FRANKLIN was for retaining the clause as favorable to the Executive. History furnishes one example only of a first Magistrate being formally brought to public Justice. Every body cried out agst. this as unconstitutional. What was the practice before this in cases where the chief Magistrate rendered himself obnoxious? Why recourse was had to assassination in wch. he was not only deprived of his life but of the opportunity of vindicating his character. It wd.. be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when [FN10] he should be unjustly accused.
Mr. Govr. MORRIS admits corruption & some few other offences to be such as ought to be impeachable; but thought the cases ought to be enumerated & defined:
Mr. MADISON thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, 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. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.
Mr. PINKNEY did not see the necessity of impeachments. He was sure they ought not to issue from the Legislature who would in that case hold them as a rod over the Executive and by that means effectually destroy his independence. His revisionary power in particular would be rendered altogether insignificant.
Mr. GERRY urged the necessity of impeachments. A good magistrate will not fear them. A bad one ought to be kept in fear of them. He hoped the maxim would never be adopted here that the chief magistrate could do no wrong.
Mr. KING expressed his apprehensions that an extreme caution in favor of liberty might enervate the Government we were forming. He wished the House to recur to the primitive axiom that the three great departments of Govts. should be separate & independent: that the Executive & Judiciary should be so as well as the Legislative: that the Executive should be so equally with the Judiciary. Would this be the case, if the Executive should be impeachable? It had been said that the Judiciary would be impeachable. But it should have been remembered at the same time that the Judiciary hold their places not for a limited time, but during good behaviour. It is necessary therefore that a forum should be established for trying misbehaviour. Was the Executive to hold his place during good behaviour? The Executive was to hold his place for a limited term like the members of the Legislature: Like them particularly the Senate whose members would continue in appointmt the same term of 6 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 them therefore, he ought to be subject to no intermediate trial, by impeachment. He ought not to be impeachable unless he held his office during good behaviour, a tenure which would be most agreeable to him; provided an independent and effectual forum could be devised. But under no circumstances ought he to be impeachable by the Legislature. This would be destructive of his independence and of the principles of the Constitution. He relied on the vigor of the Executive as a great security for the public liberties.
Mr. RANDOLPH. 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. He is aware of the necessity of proceeding with a cautious hand, and of excluding as much as possible the influence of the Legislature from the business. He suggested for consideration an idea which had fallen [from Col Hamilton] of composing a forum out of the Judges belonging to the States: and even of requiring some preliminary inquest whether just grounds [FN11] of impeachment existed.
Doctr. FRANKLIN mentioned the case of the Prince of Orange during the late war. An agreement was made between France & Holland; by which their two fleets were to unite at a certain time & place. The Dutch fleet did not appear. Every body began to wonder at it. At length it was suspected that the Statholder was at the bottom of the matter. This suspicion prevailed more & more. Yet as he could not be impeached and no regular examination took place, he remained in his office, and strengthening his own party, as the party opposed to him became formidable, he gave birth to the most violent animosities & contentions. Had he been impeachable, a regular & peaceable enquiry would have taken place and he would if guilty have been duly punished, if innocent restored to the confidence of the public. Mr. KING remarked that the case of the Statholder was not applicable. He held his place for life, and was not periodically elected. In the former case impeachments are proper to secure good behaviour. In the latter they are unnecessary; the periodical responsibility to the electors being an equivalent security.
Mr. WILSON observed that if the idea were to be pursued, the Senators who are to hold their places during the same term with the Executive, ought to be subject to impeachment & removal.
Mr. PINKNEY apprehended that some gentlemen reasoned on a supposition that the Executive was to have powers which would not be committed to him: He presumed that his powers would be so circumscribed as to render impeachments unnecessary.
Mr. Govr. MORRIS'S opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any [FN12] time in office. Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in forign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV. The Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office. This Magistrate is not the King but the prime-Minister. The people are the King. When we make him amenable to Justice however we should take care to provide some mode that will not make him dependent on the Legislature.
It was moved & 2ded. to postpone the question of impeachments which was negatived. Mas. & S. Carolina only being ay. On ye. Question, Shall the Executive be removeable on impeachments &c.? Mas. no. Ct. ay. N. J. ay. Pa. ay. Del ay. Md. ay. Va. ay. N. C. ay. S. C. no. Geo. ay. [FN13]
" [FN14] Executive to receive fixed compensation." Agreed to nem. con. "to be paid out of the National Treasury" agreed to, N. Jersey only in the negative.
Mr. GERRY & [FN15] Govr. MORRIS moved "that the Electors of the Executive shall not be members of the Natl. Legislature, nor officers of the U. States, nor shall the Electors themselves be eligible to the supreme magistracy." Agreed to nem. con.
Docr. Mc.CLURG asked whether it would not be necessary, before a Committee for detailing the Constitution should be appointed, to determine on the means by which the Executive is to carry the laws into effect, and to resist combinations agst. them. Is he to have a military force for the purpose, or to have the command of the Militia, the only existing force that can be applied to that use? As the Resolutions now stand the Committee will have no determinate directions on this great point.
Mr. WILSON thought that some additional directions to the Committee wd.. be necessary.
Mr. KING. The Committee are to provide for the end. Their discretionary power to provide for the means is involved according to an established axiom.
Adjourned
FN1 The word "proposed" is substituted in the transcript for "postponed."
FN2 In the figure "100,000" the "1" is crossed out and a figure "2" is written above it in the transcript
FN3 In the transcript the vote reads: u"Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye-6; Connecticut, New Jersey, Delaware, Maryland, no-4."
FN4 In the transcript the vote reads: "New Jersey, Delaware, Maryland, aye-3; Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no-7."
FN5 In the transcript the vote reads: "Connecticut, South Carolina, Georgia, aye-3; Massachusetts New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, no-7."
FN6 In the transcript the vote reads: "Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, aye-6; New Jersey, Delaware, Maryland, Georgia, no-4."
FN7 The words "On the clause" are here inserted in the transcript.
FN8 The words "the ninth Resolution" are substituted in the transcript for "Resol: 9."
FN9 The word "a" is here inserted in the transcript.
FN10 The word "where" is substituted in the transcript for "when."
FN11 The transcript uses the word "grounds" in the singular.
FN12 The words "length of" are here inserted in the transcript.
FN13 In the transcript the vote reads: "Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, aye-8; Massachusetts, South Carolina, No-2."
FN14 The word "The" is here inserted in the transcript.
FN15 The word "Mr." is here inserted in the transcript.
James Madison (VA) supported some formula, but as it was, all states would soon end up with three electors, the maximum. He favored a rule in which the number would vary according to state populations.
Elbridge Gerry (MA) motioned a starting point, an initial number of electors per state for the first election and suggested, NH 1, MA 3, RI 1, CN 2, NY 2, NJ 2, PA 3, DE 1, MD 2, VA 3, N C 2, SC 2, GA 1.
Judge Oliver Ellsworth (CN) moved to modify the electoral number for NH and GA.
Jacob Broome (DE) & Luther Martin (MD) wished to postpone Mr. Gerry’s allotment of electors and send it to a committee.
A vote to send the issue to committee failed 7-3.
William Houston (GA) seconded the motion to add an elector to NH and GA. The motion carried 6-4.
Hugh Williamson (NC) thought the number of electors after the first election should be the number of reps in the House of Representatives.
The motion as to numbers of electors per state in the first election carried 6-4.
A portion of the 9th Resolution, “to be removable on impeachment and conviction of malpractice or neglect of duty,” was next.
Charles Pinckney (SC) did not support impeachment of the Executive.
William Davy and James Wilson (PA) considered impeachment essential. Absent impeachment there was no telling what some men would do to remain in office. (Impeachment is next to no threat to any criminality or violation of our Constitution. What a shame. The fear in 1787 was making impeachment and removal too easy, for say, policy differences with Congress.)
Governeur Morris (PA) (Well, at least his aristocratic tendencies are consistent.) again thought only the Executive’s ministers impeachable; that reelection or no should be sufficient evidence of guilt. Who is to impeach? (We hadn’t gotten that far yet.) What would be the result of impeachment, suspension of his functions? Mr. Morris thought the threat of impeachment would render the Executive dependent on those with the power.
Dr. Benjamin Franklin (PA) wished to retain the clause. Without it, violence, and assassination were the only recourses for particularly objectionable executives. Impeachment would also serve to acquit an innocent man. (Franklin was among the best at understanding human nature. Here, he foresaw scoundrel Presidents and encouraged impeachment as an alternative to violent overthrow. At the end of the Convention he also predicted our eventual slide into despotism.)
Governeur Morris (PA) modified his position to wish a delineation of the offenses that could bring on impeachment.
James Madison (VA) answered Mr. Morris using terms: incapacity, negligence, perfidy, perversion of his administration, peculation, oppression, betrayal. Executives and legislatures differ in their capacity of corruption, one man v. many. While it was difficult to bribe a majority of a legislature, (Oh well, nobody bats 1.000) it was easier to corrupt a single man and therefore impeachment was necessary. (Had Madison’s envelope of impeachable offenses been incorporated, I have to wonder how it would have hindered Presidential overreach of powers.)
Charles Pinckney (SC) did not see the need for impeachment. Such a “rod” held over the head of the Executive would surely impair his independence. (I think we see here another indication of state legislative muscle over their governors. There was an undercurrent, a presumption in these debates, of a powerful Congress that must be reined in to some extent, less it railroad the Executive as state assemblies did to governors.)
Elbridge Gerry (MA) urged acceptance of the clause. A good Magistrate could not fear it, a crooked one should. (In a rebuke to Mr. Morris) Executives can do wrong.
Rufus King (MA) reminded the Convention of axiom of independence between the branches. Judges were impeachable because they served during good behavior. Executives had to face elections regularly. What was the forum to be for impeachment? Would the Executive also hold office subject to good behavior? If so, the legislature should not be the grand jury to bring charges. (Ever so slowly, the theories of the great political philosophers were considered, molded, polished, and put into practice.) Mr. King along with other delegates considered legislative impeachment a violation of Montesquieu’s maxim.
Governor Edmund Randolph, himself a governor, knew the opportunities for executive mischief, especially during war. Provision for impeachment was imperative. He brought up a method using judges as per Alexander Hamilton (NY)’s sketch of government.
Dr. Benjamin Franklin (PA) gave an historic example why violence may at times be the alternative to impeachment.
Rufus King (MA) drew an exception to Mr. Franklin’s lesson. The Statholder held office for life.
James Wilson (PA) drew an interesting parallel between Senators and Executive. Both were to hold office for six years; should Senators not be subject to impeachment?
Charles Pinckney (SC) implied the powers of the Executive would be so narrow as to “render impeachments unnecessary.”
Governeur Morris (PA)’ opinion had changed. (As did most all of the delegates during the span of the Convention) He saw the need for impeachment when, as would be the case, the Executive could be bribed, be bought by foreign interests (Bent Willie and China and Loral Space Systems?) Mr. Morris drew the difference between a Monarch who had power and wealth and could reasonably resist betrayal of the interests of his country with an elected Executive for years. For treachery, buying his electors, and incapacity, the Executive should be impeachable. “This Magistrate is not the King but the prime-Minister. The people are the King.” (That could become a FR tagline) Still, the Executive should not be dependent on the legislature.
On the question, “Shall the Executive be removable on impeachment and conviction of malpractice or neglect of duty,” passed 8-2.
“To receive fixed compensation,” passed without opposition.
“To be paid out of the National Treasury,” passed with only NJ in the negative. (?) The Convention agreed unanimously to “that the Electors of the Executive shall not be members of the Natl. Legislature, nor officers of the U. States, nor shall the Electors themselves be eligible to the supreme magistracy."
James McClurg (VA) queried as to the powers of the Executive. The committee of detail would have an easier time of it if they had direction as to the extent/limits of Executive power.
James Wilson (PA) concurred.
Adjourned.
Notice the reason for it, to provide a nonviolent means to remove scoundrel Presidents.
As colonists a dozen years prior, we couldn't depose the King who made war on us. Our Framers corrected that; as a free and self governing people we could remove our President.
Does that paper power exist today, or is the impeachment clause just another one excised by time, non use? Or, is it not used because the office of the President has become more Kingly in nature rather than popular?
I found much in this post to remember— and to think about—and perhaps remind my Senators of concerning Wm.Davey & James Wilson—on this day of the Convention. and your comment on Franklins observation that violence is sometimes an alternative to impeachment? OH if only our Country remebered where it came from.
A similar argument can be made around the courts. In the 1770s, colonial courts were designed to protect the prerogatives of the King, not our unalienable rights. What do our courts do now? Do they protect our unalienable rights or the power of government to do as it wishes? When was the last time you heard of a Ninth Amendment case against the government? I can't recall one.
You are right -on both counts. I have just read through much of the Cornell Law Faculty Publication on Assassination and Impeachment from last year. And it seems clear enough from that reading that Dr.Franklin was thinking of the assassinations of Caesar— and of King Charles I -and suggesting Impeachment was in the best interest of the Executive.
and as you suggest our Courts have seemed to carry on the tradition of the Colonials and protect the power of the body
they belong with over the rights of citizens. I ought not be commenting on my reading unless I’ve read a thing often enough to understand it.But I still am guilty of that sin.
Hmm, what else did you learn from the Cornell publication, anything worth sharing?
Not much — I do need to reread it a few times— I was looking specifically for references to Franklin—and Impeachment.
Do find the author of the piece seems to believe we have evolved and assassination as opposed to Impeachment(political assassination) is no longer an alternative. I agree with an
old Journalist who told us (budding Journalists/college kids)
that the difference between the television news— and the print media is we have improved—or invented new tools —but the heart of man is still in the cave dwelling era. I think he was profound. And reflected the founding ideology to some degree.
“the heart of man is still in the cave dwelling era.”
Absent civilization we would behave little better, perhaps worse than animals.
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