Governor and Council; in Virginia, the Legislature on joint ballot; in North and South Carolina, and Georgia, the same.

Being thus chosen in all the States, as most of the other officers were, the Convention which formed the Federal Constitution was not likely to adopt a different policy for the General Government. It was, however, a subject full of difficulty and embarrassment, as the debates plainly show. In the sketch of a Constitution prepared by Colonel Hamilton, and read by him to the Convention, he proposed that the Executive should have "the sole appointment of the heads or chief officers of the departments of finance, war and foreign affairs," and to have the appoint ment of all other officers, "subject to the approbation or rejection of the Senate." 5 Elliott's Deb., 205. The draft submitted by Charles Pinckney proposed to give to the Senate the appointment of "ambassadors and other ministers to foreign nations, and judges of the Supreme court," and that the President should "nominate and, with the consent of the Senate, appoint all other officers." Ibid. 130. Mr. Patterson's plan, which had been concerted by delegates from New York, Connecticut, New Jersey and Delaware, and was offered as a counter proposition to the plan the Convention had informally agreed to, proposed that the judges should be appointed by the Executive, and also all federal officers not otherwise provided for. Ibid. 192. Various other propositions were submitted, but the Convention at last agreed upon the provision now in the Constitution with great unanimity.

Mr. Randolph's plan was that the judges should be elected by ConMr. Wilson led off in opposition to this mode of appointment. He said "experience showed the impropriety of such appointments by numerous bodies. Intrigue, partiality, and concealment, were the necessary consequences. A principal reason for unity in the Executive was, that officers might be appointed by a single responsible person." Mr. Rutledge was not "disposed to grant so great a power to any single person." Dr. Franklin "wished such other modes suggested as might occur to other gentlemen," and "related a Scotch mode, in which the nomination proceeded from the lawyers, who always selected the ablest of the profession, to get rid of him, and share his practice among themselves." Mr. Madison expressed his dislike "to the election of the judges by the Legislature, or any numerous body;" but he "was not satisfied with referring the appointment to the Executive." He hinted that it might be given to the Senate, and moved that the appointment by the Legislature be stricken out and a blank left, which was agreed to. 5 Elliott's Deb., 155. When the subject was resumed, Mr. Pinckney and Mr. Sherman moved to reinsert the words previously stricken out. Mr. Madison" objected to an appointment by the whole Legislature." He said "many of them are incompetent judges of the requisite qualifica

tions. They were too much influenced by their partialities. The candidate was present who had a talent for business in the legislative field— who had, perhaps, assisted ignorant members in business of their own," &c., "would, without any of the essential qualifications for an expositor of the laws, prevail over a competitor not having these recommendations, but possessed of every necessary qualification." He proposed, therefore, that the Senate should elect them, and his motion was agreed to nem, con. 5 Elliott's Deb., 188.

66

Subsequent to this decision, when the subject again came under consideration, Mr. Gorham "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." Mr. Wilson thought it his duty to move, in the first instance, "that the judges be appointed. by the Executive," which was seconded by Gouverneur Morris. Luther Martin was strenuous for an appointment by the second branch," and Roger Sherman "concurred in the observations of Mr. Martin." Mr. Mason thought there were "insuperable objections" to giving "the appointment to the Executive." Mr. Gorham said: "As the Executive will be responsible, in point of character at least, for a judicious and faithful discharge of his trust, he will be careful to look through all the States for proper characters;" that "public bodies feel no personal responsibility, and give full play to intrigue and cabal;" and he referred to Rhode Island as a full illustration of the insensibility to character produced by a participation of numbers in dishonorable measures, and of the length to which a public body may carry wickedness and cabal." Mr. Madison "suggested that the judges might be appointed by the Executive, with the concurrence of one-third at least of the second branch." Mr. Sherman "was clearly for an election by the Senate." Mr. Randolph preferred the Senate. Mr. Bedford "thought there were solid reasons against leaving the appointment to the Executive." On the question of giving the appointments to the Executive, Massachusetts and Pennsylvania voted in the affirmative, and six of the other States in the negative; and on the question of the President, by and with the advice and consent of the Senate, making the appointments, Massachusetts, Pennsylvania, Maryland and Virginia, voted in the affirmative, and Connecticut, Delaware, North and South Carolina în the negative, the members from Georgia being absent. lbid., 328. Finally, it was agreed, however, to give to the Executive the appointment of "ambassadors, other public ministers and consuls, judges of the Supreme court, and all other officers," to be confirmed by the Senate, whose appointments were not otherwise provided for.

How far the State governments have been improved by modern innovations may well be questioned. South Carolina is now the only State

in which the Executive is not chosen by a popular vote; and the change, in this respect, is generally regarded as an improvement. But the change made in many of the States in the manner of selecting judges is a mooted point, and it is by no means certain that the character of the Judiciary has been improved. In arguing the case of Groves, et. al., v. Slaughter, before the United States Supreme court, Henry Clay is reported to have used the following emphatic language, showing what were his views as to this modern change of State polity: "I hope never to live in a State where the judges are elected, and where the period for which they hold their offices is limited, so that elections are constantly recurring." Peters, vol. xv., p. 486.

In many of the States, this important trust of patronage still is deemed safest where the primary constitutions lodged it. In Maine, the judges are still appointed by the Governor, by and with the advice and consent of the Council; in Massachusetts, the same; so in New Hampshire; in Vermont, they are chosen by the Legislature; in Connecticut, the same; so in Virginia and some other States; in New York, Pennsylvania, Ohio, Wisconsin and other States, they are however now elected by the people.

But few of the civil or military officers are now appointed by the Executive, or elected by the Legislature, in any of the States. Nearly all are now chosen by a popular vote. Mr. Warner thinks "liberty has no concern in the matter, beyond the choice of the two legislative houses;" because "to control the head, is to control the body," and that it is "enough for the people, at all events, to have both the Legislature and the Chief Executive directly dependent on their votes." Though this may be all true, and though the primary mode may have, as he says, "saved the people trouble," and it may have "promoted their interests, without a particle of danger to liberty in any quarter," it is no less true that the people now generally prefer to have the exercise of this power in their own hands, and that they have thus far shown themselves abundantly able to discharge it. But having assumed it in the States, it by no means follows that they should exercise it under the General Government, as the Free German Associations now wish to do.

CHAPTER XXXI.

TERM AND TENURE OF OFFICE.

THE terms and tenures of office, as agreed upon by the framers of the Federal Constitution, and which are deemed so unreasonable by the reformers of the present day, were as follows: That the President "shall hold his office during the term of four years;" that senators shall be chosen for six years, and "the House of Representatives shall he composed of members chosen every second year;" and that "the judges, both of the Supreme and Inferior courts, shall hold their offices during good behavior."

This result was arrived at after a full discussion of the various plans proposed. Edmund Randolph, in the scheme submitted by him, fixed no definite term for the Executive, nor for senators. The latter, he pro

posed should "hold their offices for a term sufficient to insure their independency," and the judges "during good behavior." Charles Pinckney's plan fixed no definite tenure for the Executive, Senate or House of Representatives, but also proposed that the judges should hold their offices "during good behavior." The plan proposed by Mr. Patterson, as a substitute for Mr. Randolph's, also favored a life-tenure for the judges. Col. Hamilton, in his paper, which he read to the Convention as embodying his views as to the form that the Constitution should assume, proposed that the Executive, senators and judges, should hold their offices "during good behavior," and the members of the House of Representatives for three years; and in a speech made by him, reviewing the plans submitted by Messrs. Randolph and Patterson, he spoke as follows:

This view of the subject almost led him to despair that a republican government could be established over so great an extent. He was sensible, at the same time, that it would be unwise to propose one of any other form. In his private opinion, he had no scruple in declaring, supported as he was by the opinion of so many of the wise and good, that the British government was the best in the world; and he doubted much whether any thing short of it would do in America. He hoped gentlemen of different opinions would bear with him in this, and begged them to recollect the change of opinion on this subject which had taken place, and was still going on. It was once thought that the power of Congress was amply sufficient to secure the end of this institution. The error was now seen by every one. The members most tenacious of republicanism, he observed, were as loud as any in declaiming against the vices of democracy.

Let one branch of the Legislature hold their places for life, or at least during good behavior. Let the Executive, also, be for life. He appealed to the feelings of the mem

bers present, whether a term of seven years would induce the sacrifices of private affairs which an acceptance of public trust would require, so as to insure the services of the best citizens. On this plan, we should have in the Senate a permanent will, a weighty interest, which would answer essential purposes. But is this a republican government? it will be asked. Yes, if all the magistrates are appointed and vacancies are filled by the people, or a process of election originating with the people. He was sensible that an Executive, constituted as he proposed, would have in fact but little of the power and independence that might be necessary. On the other plan, of appointing him for seven years, he thought the Executive ought to have but little power. He would be ambitious, with the means of making creatures, and as the object of his ambition would be to prolong his power, it is probable that, in case of war he would avail himself of the emergency, to evade or refuse a degradation from his place. An Executive for life has not this motive for forgetting his fidelity, and will therefore be a safer depository of power. It will be objected, probably, that such an Executive would be an elective monarch, and will give birth to the tumults which characterize that form of government. He would reply, that monarch is an indefinite term. It marks not either the degree or duration of power. If this Executive magistrate would be a monarch for life, the other proposed by the report from the Committee of the Whole would be a monarch for seven years. The circumstance of being elective was also applicable to both. It had been observed, by judicious writers, that elective monarchies would be the best if they could be guarded against the tumults excited by the ambition and intrigues of competitors. He was not sure that tumults were an insuperable evil. He thought this character of elective monarchies had been taken rather from particular cases than from general principles. The election of Roman Emperors was made by the army. In Poland, the election is made by great rival princes, with independent power, and ample means of raising commotions. In the German empire, the appointment is made by the electors and princes, who have equal motives and means for exciting cabals and parties. Might not such a mode of election be devised, among ourselves, as will defend the community against these defects in any dangerous degree? Having made these observations, he would read to the committee a sketch of a plan which he should prefer to either of those under consideration. He was aware that it went beyond the ideas of most members. But will such a plan be adopted out of doors? In return he would ask, will the people adopt the other plan? At present, they will adopt neither. But he sees the Union dissolving, or already dissolved-he sees evils operating in the States which must soon cure the people of their fondness for democracies-he sees that a great progress has been already made, and is still going on in the public mind. He thinks, therefore, that the people will in time be unshackled from their prejudices, and whenever that happens, they will themselves not be satisfied at stopping where the plan of Mr. Randolph would place them, but be ready to go as far at least as he proposes. He did not mean to offer the paper he had sketched as a proposition to that committee. It was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose to the plan of Mr. Randolph, in the proper stages of its future discussion. 5 Elliott's Debates, 203.

When that part of Mr. Randolph's resolution relating to the tenure of the Executive came under consideration, Mr. Wilson moved "that the blank for the time of duration should be filled with three years," observing, at the same time, that he preferred this short period on the supposition that a re-eligibility would be provided for. Mr. Pinckney moved for