Chapter Four -- Part B Impeachment and Removal from Office Debates at the Constitutional Convention |
Debate of the Convention up to the August 6th Draft Constitution
After agreeing to continue with the Randolph resolutions, the Convention proceeded to again consider them, one by one, with some postponements. This debate continued from June 19th to July 26th, where Madison shows a list of Resolutions agreed to up to that time. On July 24th five members were chosen "to report a Constitution conformable to the Resolutions passed by the Convention, the members chosen were Mr. Rutlidge, Mr. Randolph, Mr. Ghorum, Mr. Elseworth, Mr. Wilson." The Convention recessed from July 26th to August 6th, when a draft of the Constitution was presented to the Convention. Much of the language in this draft is similar to, and in some cases identical with, language in the final Constitution.
It is important to keep in mind that during the debates up to July 26th, the structure of powers and relationships between the three branches of government was still fluid. My plan here is to first recount the discussions on impeachment up to August 6th, in the context of summaries of what had been agreed to up to each discussion. I will then outline and comment on the August 6th draft Constitution with emphasis on what it contained regarding impeachment and removal.
From June 19th to July 17th the Convention debated Randolph’s resolutions regarding the legislature. By July 17th the basic structure of the House and Senate was similar to the final Constitution, however the powers of Congress were not yet specified in the detail of the final Constitution. On July 17th discussion commenced on resolutions concerning the executive. Selection of the executive by the legislature was immediately disputed by Governour Morris, who argued an executive "...will be the mere creature of the Legislature if appointed and impeachable by that body. He ought to be elected by the people at large,..." [19] Governour Morris’ motion to change election of the executive from the legislature to the people was defeated, by a vote of 1 state yes, 9 states no. [20] Mr. Martin proposed "the Executive be chosen ‘by Electors appointed by the several Legislatures of the individual states.’" This was also defeated, by 2 states yes, 8 states no. [21] The Convention then agreed the executive was "‘to be chosen by the National Legislature’ it passed unanimously in the affirmative." [22]
Mr. Mason commented on July 18th, "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." [23] A little later that day Governour Morris "supposed it would be improper for an impeachment of the Executive to be tried before the Judges. The latter would in such case be drawn into intrigues with the Legislature and an impartial trial would be frustrated. As they would be much about the Seat of Government they might even be previously consulted & arrangements might be made for a prosecution of the Executive." [24] Toward the end of the same day: "13. Resol: ‘Impeachments of national officers’ were struck out on motion for the purpose. ‘The jurisdiction of Nat. Judiciary.’ Several criticisms having been made on the definition; it was proposed by Mr. Madison so to alter as to read thus - ‘that the jurisdiction shall extend to all cases arising under the Nat laws: And to such other questions as may involve the Nat. peace & harmony,’ which was agreed to nem. con." [25] As we have seen, on June 13th Madison had previously introduced language with a similar phrase: "‘...and questions which involve the national peace and harmony.’" [26] When we compare the current phrase to the June 13th phrase, we see that Madison has now inserted the words "to such other", and has replaced the word "which" with the words "as may". It appears to me that the new phrasing is friendlier to the interpretation that there is a yet to be defined role for the Judiciary to play in questions involving removal from office.
On July 19th Madison records about two and a half pages of a speech by Governeur Morris that appears to be Morris’ speech word for word. Up to this point, most words of caution at the Convention had been stated against dangers from the executive. Morris gives a powerful speech favoring a strong executive and national leader, subject to temptations and excess but best checked not by legislative impeachment but by a term of short duration. Morris’ view will be considered further in the next chapter. Here is an extensive excerpt:
"One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will sieze those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people, even of the lower classes, against Legislative tyranny, against the Great & the wealthy who in the course of things will necessarily compose the Legislative body. Wealth tends to corrupt the mind & to nourish its love of power, and to stimulate it to oppression. History proves this to be the spirit of the opulent. The check provided in the 2nd branch was not meant as a check on Legislative usurpations of power, but on the abuse of lawful powers, on the propensity in the 1st branch to legislate too much to run into projects of paper money & similar expedients. It is no check on Legislative tyranny. On the contrary it may favor it, and if the 1st branch can be seduced may find the means of success. The Executive therefore ought to be so constituted as to be the great protector of the Mass of the people... [T]he executive is not to be re-eligible. What effect will this have? 1. it will destroy the great incitement to merit public esteem by taking away the hope of being rewarded with a reappointment. It may give a dangerous turn to one of the strongest passions in the human breast. The love of fame is the great spring to noble & illustrious actions. Shut the Civil road to Glory & he may be compelled to seek it by the sword. 2. It will tempt him to make the most of the short space of time allotted him, to accumulate wealth and provide for his friends. 3. It will produce violations of the very constitution it is meant to secure. In moments of pressing danger the tried abilities and established character of a favorite Magistrate will prevail over respect for the forms of the Constitution. The executive is also to be impeachable. This is a dangerous part of the plan. It will hold him in such dependence that he will be no check on the Legislature, will not be a firm guardian of the people and of the public interest. He will be the tool of a faction, of some leading demagogue in the Legislature. These then are the faults of the Executive establishment as now proposed. Can no better establishment be devised? If he is to be the Guardian of the people let him be appointed by the people? If he is to be a check on the Legislature let him not be impeachable. Let him be of short duration, that he may with propriety be re-eligible." [27]
Shortly after Morris’ speech, Madison records: "Mr. Wilson....perceived with pleasure that the idea was gaining ground, of an election mediately or immediately by the people." [28]
"Mr. Madison. If it be a fundamental principle of free Gov. that the Legislative, Executive & Judiciary powers should be separately exercised, it is equally so that they be independently exercised." [29]
The impeachment issue was revisited July 20th, in this extended excerpt: [30]
"Mr. Wilson concurred in the necessity of making the Executive impeachable whilst in office.
"Mr. Gov. Morris. He can do no criminal act without Coadjutors who may be punished. In case he should be re-elected, that will be 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."
"Dr. 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 against 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 which he was not only deprived of his life but of the opportunity of vindicating his character. It would 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 he should be unjustly accused.
"Mr. Gov. 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 against 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.... 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 Gov. 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?...the Judiciary hold their places not for a limited time, but during good behaviour...[The executive] 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 opportunities of abusing his power...Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections....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 of impeachment existed.
"Doct 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. Gov. 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 time in office. Our Executive was not like a Magistrate having a life interest, much less like one having a 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 foreign pay, without being able to guard against it by displacing him. One would think the King of England well secured against bribery. He had 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 & 2nd 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."
The vote was 8 yes, 2 no. [31]
Election of the President was taken from the Congress and given to electors from the states, but not until late in the Convention. By July 26th the Convention had agreed to two Resolutions on the executive. These are shown as they were renumbered in a later listing by Madison, including the date agreed to, as follows:
"July 26. XII. Resolved, That a national executive be instituted, to consist of a single person; to be chosen by the national legislature, for the term of seven years; to be ineligible a second time; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be removable on impeachment, and conviction of mal-practice or neglect of duty; to receive a fixed compensation for the devotion of his time to publick service; to be paid out of the publick treasury." [32]
"July 21. XIII. Resolved, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two third parts of each branch of the national legislature." [33]
In effect, the executive was to be an administrator, with the ability to erect by veto a high hurdle for bad laws. At this point, no resolution had established the executive as Commander in Chief of the armed forces. This was to first appear in the August 6th draft Constitution.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.