made six years.1 The presidential electors should be twenty-five in number, which was Gerry's suggestion, and be apportioned among the States.2

The English precedent established impeachment for the advisors of the King, but not for the King himself, and though it weighed lightly with the Convention, it seems to have had its influence, for Morris remarked that the executive could not do a criminal act without coadjutors, and that the short term allowed an easy removal. Moreover, who would impeach him and who would perform his functions during the impeachment? Franklin, with his usual penetration, favored the impeachment clause as highly advantageous to the executive, for it would be a means of vindicating his character and his administration. The short term did not seem a sufficient security to Madison, for the executive might become incapable of performing his duties or he might betray his trust; in a word, he would be liable to many infirmities which could not befall the legislative body, but to authorize the legislature to impeach him would make him in a measure dependent on that body,—an evil which Pinckney and Gerry depicted at length. It was desirable that the proceedings in impeachment should be conducted by a more permanent body than the legislature, and one less liable to corruption. Morris, who had proposed that the clause on impeachment should be struck out, now declared that his opinion had been changed by the argument and he was sensible of the necessity of retaining the provision. The search then was for the proper agency, which at present was not apparent.

1 Delaware alone, no.

2 July 20, Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, aye; New Jersey, Delaware, Maryland, Georgia, no.

454

EXECUTIVE COUNCIL.

As the members had grown up under a political system which provided an executive council, many, like Wilson1 were favorable to the association of one with the chief magistrate. By this means hasty laws could be cut off and the executive also held in proper check. Wilson was especially convinced of the excellence of the scheme, perhaps from partiality to the Council of Censors in his own state2 and he renewed his proposition to associate the Supreme Court with the executive in the revisionary power. The only State which at this time employed the judges in this way was Massachusetts. It authorized each branch of the legislature, as well as the governor and council, to require the opinions of the judges of the Supreme Court "upon important questions of law and on solemn occasions."3 Gorham urged the adoption of the Massachusetts provision and Ellsworth heartily approved. Madison favored Wilson's plan, not so much out of consideration for the executive, as because it would assist the judiciary to defend itself against legislative encroachments. He feared that in the new government, as in the States, the legislature would have the chief control. This finessing to hedge each department of the government about with checks and balances may seem to some, now, petty and superfluous, but we must remember that we know the Constitution of the United States as a national political system having a history of more than one hundred years, while its framers knew it only as a government on paper. Its administration has worked out its functions more or less clearly, but to the members of the Convention its functions were more or less obscure, and its practical value seemed to depend upon the mechanical arrangement of the three

1 July 21.

2 Pennsylvania, constitution, 1776.

› Massachusetts constitution, 1780, Part 2, Chapter 3, Article II.

EXECUTIVE COUNCIL.

455

familiar departments. Even Mason, who had all along insisted on the threefold division and the separation of powers, favored the association of the judiciary with the executive in the revisionary power, as a source of confidence to him. The expositors of the laws, said Gerry, should never be made lawmakers, and Strong agreed with him that no maxim was better established. Morris inclined to the association, having in mind the share which English judges sometimes had in legislation, but his real purpose, like Madison's, was to guard against legislative usurpation. He believed that the judges would prove a strong preventive of laws for the emission of paper money, the scaling of debts and other popular measures.

To all these mechanical arrangements Martin objected on the ground of expense. There was no evidence that the judges possessed a higher character than the law-makers. They already had a negative in their judicial functions; would have a double one if joined with the executive, and this association would lose them the confidence of the people. Wilson attempted to meet the objections that the association would violate Montesquieu's well known principle, saying that the separation of the departments did not require that they should have separate objects, but this refinement of the principle did not convince Gerry, who expressed his willingness to give the executive an absolute negative for his own defense, rather than to blend judicial and executive functions together, and though Wilson's proposition had been ably defended, the majority agreed with Rutledge, that judges ought never to give their opinion on a law until it should come before them, and the proposition was lost.1

1 Connecticut, Maryland, Virginia, aye; Massachusetts, Delaware, North Carolina, South Carolina, no; Pennsylvania and Georgia divided; New Jersey absent.

456

APPOINTMENT OF JUDGES.

Madison favored the nomination of judges by the executive and their appointment by the Senate unless disagreed to by two-thirds, which he thought would secure responsibility and capacity for the choice. There was little objection to the participation of the Senate in the appointment, but Pinckney doubted that the executive would have either the requisite knowledge of proper persons or the confidence of the people for making so important an appointment, and he favored placing it exclusively with the Senate. The general discussion of checks and balances had done much to clear up the functions of the Senate, and the disposition to confide in it was now strong, but Randolph and Gorham feared that an appointment of judges exclusively by the Senate would be the result of intrigue and personal regard, and therefore, the Massachusetts plan of executive nomination and senatorial approval should be followed. Yet, as Ellsworth said, if the executive could be trusted with the command of the army, he could be entrusted with the appointment of the judges. Gerry was anxious to follow a mode which would satisfy both the people and the States, and his remarks led Madison to say that he was not anxious that two-thirds of the Senate should be necessary to agree to a nomination. By one of those sudden changes often observed in parliamentary bodies, the Convention now not only rejected Madison's proposition of executive nomination and appointment with the consent of the Senate, but, reversing its former vote, decided that the Senate should elect the judges.1

The obligation of an oath to support the State constitutions seemed to Williamson, who was a strong defender of State rights, more proper to be required from national officers, than an oath from the State officers to support the

1 Connecticut, Delaware, Maryland, North Carolina, South Carolina, Georgia, aye; Massachusetts, Pennsylvania, Virginia, no,

DISTRUST OF THE LEGISLATURES.

457

national government,' but Wilson characterized an oath as only a left handed security at best. Perhaps long residence among the Friends in Pennsylvania had won him to some of their views. A good government, he said, did not require oaths, and a bad one ought not to be supported. Moreover, as Gorham said, an oath might be in the way of amendments, as it would apply only to the existing Constitution, though alterations could not be regarded as a breach of the original instrument. No State officer took oath to support the Articles of Confederation and the omission had indicated the prevailing and conspicuous preference for the State governments, but largely in the belief that this would be cured, the requirement of an oath was unanimously approved.

Distrust of the assemblies was largely the cause of the original plan to submit the Constitution to conventions. chosen expressly by the people; and even greater distrust of the people possessed some members, of whom Ellsworth and Patterson were the most outspoken. Mason, voicing the national idea, considered a submission of the plan to the people most essential. The assemblies would have no power to ratify, as they were mere creations of the State constitutions and could not be greater than the source of their power. Yet, not a single constitution authorized them to ratify the new system. Resort, therefore, must be had to the people. In most of the States, constitutions had been promulgated and did not spring from the source of sovereignty. These were Mason's sentiments, and were entertained also by Randolph; but Gerry believed this idea went too far, as tending to prove the unconstitutionality of the Articles and even of the State governments.

1 July 23. John Langdon and Nicholas Gilman from New Hampshire took their seats this day.