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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 grandchildren 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."
On the 18th the subject of the judiciary was discussed, and it was proposed that the judges should be appointed “ by the Executive with the consent of the Senate," instead of by the Senate as declared in the eleventh resolution of the report. George Mason spoke as follows:
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 State that would deprive equal merit elsewhere of an equal chance of promotion.
Concerning the twelfth resolution, “that the national legislature be empowered to appoint inferior tribunals," Colonel Mason “ thought many circumstances might arise, not now to be foreseen, which might render such a power absolutely necessary.”: Objections being made to the sixteenth resolution guaranteeing a republican constitution to each State by the United States, George Mason said, “if the general POWERS OF THE JUDICIARY.
i Ibid., p. 1127.
Ibid., p. 1131.
3 Ibid., p. 1137•
government should have no right to suppress rebellions against particular States, it will be in a bad situation indeed. As rebellions against itself originate in and against individual States, it must remain a passive spectator of its own subversion.'
The appointment of the Executive through electors having been decided upon, the question of impeachment was resumed. Colonel Mason declared :
“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 and difficulty as to the mode of choosing the executive. He approved of that which had been adopted at first, namely, of referring the appointment to the national legislature. One objection against electors was the danger of their being corrupted by the candidates, and this furnished a peculiar reason in favor of impeachment whilst in office. Shall the man who has practised corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?":
On the motion to associate the judiciary “with the executive in the revisionary power," Colonel Mason said, “ he had always been a friend to this provision. It would give a confidence to the executive, which he would not otherwise have, and without which the revisionary power would be of little avail.” He urged again, “ that the defence of the executive was not the sole object of the revisionary power. He expected even greater advantages from it. Notwithstanding the precautious taken in the constitution of the legislature, it would still so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws. This restraining power was therefore essentially necessary.
It would have the effect, not only of
1 Ibid., p. 1139.
o Ibid., p. 1154.
hindering the final passage of such laws, but would discourage demagogues from attempting to get them passed. It has been said (by Mr. Luther Martin), that if the judges were joined in this check on the laws, they would have a double negative, since in their expository capacity of judges they would have one negative. He would reply, that in this capacity they could impede, in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, that did not come plainly under this description, they would be under the necessity, as judges, to give it a free course.
He wished the further use to be made of the judges of giving aid in preventing every improper law. Their aid will be the more valuable, as they are in the habit and practice of considering laws in their true principles, and in all their consequences.
In regard to the appointment of judges, Mr. Madison made the motion that they should be nominated by the Executive, and the appointments so made, unless disagreed to by two thirds of the Senate, were to hold good. Governor Randolph favored the motion. Colonel Mason did not assent to it; he“ found it his duty to differ from his colleagues in their opinions and reasonings on this subject. Notwithstanding the form of the proposition, by which the appointment seemed to be divided between the executive and Senate, the appointment was substantially vested in the former alone. The false complaisance which usually prevails in such cases will prevent a disagreement to the first nominations. He considered the appointment by the executive as a dangerous prerogative. It might even give him an influence over the judiciary department itself. He did not think the difference of interest between the Northern and Southern States could be properly brought into this argument. It would operate, and require some precautions in the case of regulating navigation, commerce, and imposts; but he could not see that it had any connect: i with the
Ibid., pp. 1163–1168.
APPOINTMENT OF JUDGES.
judiciary department.' Madison had contended that appointments by the Senate would give the balance of power to the Northern States. The committee had given the appointment of judges to the second branch of the legislature, but a motion had been made on the 18th to alter this decision, which was revived by Madison.
On the 23d the Convention debated on the mode of ratify. ing the Constitution. Should it be by the States through their legislatures, or by conventions of the people in each State? George Mason warmly espoused the latter alternative. He “considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it. They are the mere creatures of the State constitutions, and cannot be greater than their creators. And he knew of no power
of the constitutions—he knew there was no power in some of them—that could be competent to this object. Whither, then, must we resort ? To the people, with whom all power remains that has not been given up in the constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished, as the basis of free government. Another strong reason was that, admitting the legislatures to have a competent authority, it would be wrong to refer the plan to them, because succeeding legislatures, having equal authority, could undo the acts of their predecessors; and the national government would stand in each State on the weak and tottering foundation of an act of Assembly. There was a remaining consideration of some weight. In some of the States, the governments were not derived from the clear and undisputed authority of the people. This was the case in Virginia. Some of the best and wisest citizens considered the Constitution as established by an assumed authority. A national constitution derived from such a source would be exposed to the severest criticism."
A moti was made that the members of the Senate
1 Ibid., p. 1174.
? Ibid., p. 1177.
should vote per capita, and that the number from each State should be three. Colonel Mason thought "three from each State, including new States, would make the second branch too numerous. Besides other objections, the additional expense ought always to form one, where it was not absolutely necessary."! The puzzling question of the mode of electing the Executive was discussed on the 24th and 25th. Among other plans, the motion was made that he should be appointed by the legislature, and be not eligible “ for more than six years in any twelve years." Colonel Mason approved the suggestion :
“ It had the sanction of experience in the instance of Congress, and some of the executives of the States. It rendered the executive as effectually independent as an ineligibility after his first election ; and opened the way, at the same time, for the advantage of his future services. He preferred on the whole the election by the national legislature ; though candor obliged him to admit, that there was great danger of foreign influence, as had been suggested. This was the most serious objection, with him, that had been urged.”
On the 24th of July, the twenty-three resolutions which the Convention had elaborated from the nineteen resolutions reported on the 19th of June were referred to a Committee of Detail to be shaped into a constitution. This committee consisted of five members, Gorham, Ellsworth, Wilson, Randolph, and Rutledge, three Northern and two Southern men. The resolution on the Executive was not given to the committee until the 26th. On this day George Mason made the opening speech in the Convention, passing in review the various propositions that had been made in regard to the subject under discussion:
“In every stage of the question relative to the executive, the difficulty of the subject and the diversity of the opinions concerning it, have appeared. Nor have any of the modes of constituting that department been satisfactory. First, it has been proposed that the election should be made by the people at large ; that is, P. 1185.
? Ibid., p. 1202.