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 proposed 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 tern. 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

seven years. Mr. Sherman was for three years, and against the doctrine of rotation, as throwing out of office the men best qualified to execute its duties. Mr. Mason was for seven years at least, and for prohibiting a re-eligibility, as the best expedient, both for preventing the effect of a false complaisance on the side of the Legislature towards unfit characters, and a temptation on the side of the Executive to intrigue with the Legislature for a reappointment. Mr. Bedford was strongly opposed to so long a term as seven years. He begged the committee to consider what the situation of the country would be, in case the first magistrate should be saddled on it for such a period, and it should be found on trial that he did not possess the qualifications ascribed to him, or should lose them after his appointment. An impeachment, he said, would be no cure for this evil, as an impeachment would reach misfeasance only, not incapacity. He was for a triennial election, and for an ineligibility after a period of nine years. On the question for seven years-New York, New Jersey, Pennsylvania, Delaware, Virginia, aye, 5; Connecticut, North Carolina, South Carolina, Georgia, no, 4; Massachusetts, divided. 5 Elliott's Deb., 142.

Subsequently the following discussion took place :

Dr. McClurg moved to strike out "seven years," and insert "during good behavior." By striking out the words declaring him not re-eligible, he was put in a position that would keep him dependent forever on the Legislature; and he conceived the independence of the Executive to be equally essential with that of the Judiciary department.

Mr. Gouverneur Morris seconded the motion. He expressed great pleasure in hearing it. This was the way to get a good government. His fear that so valuable an ingre dient would not be attained had led him to take the part he had done. He was indifferent how the Executive should be chosen, provided he held his place by this tenure. Mr. Broome highly approved the motion. It obviated all his difficulties.

Mr. Sherman considered such a tenure as by no means safe or admissible. As the Executive magistrate is not re-eligible, he will be on good behavior as far as will be necessary. If he behaves well, he will be continued; if otherwise, displaced, on a succeeding election.

Mr. Madison. If it be essential to the preservation of liberty that the legislative, executive, and judiciary powers be separate, it is essential to a maintenance of the separation that they should be independent of each other. The Executive could not be independent of the Legislature, if dependent on the pleasure of that branch for a reappointment.

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Whether the plan proposed by the motion was a proper one, was another question, as it depended on the practicability of instituting a tribunal for impeachments as certain and as adequate in the one case as in the other. On the other hand, respect for the mover entitled his proposition to a fair hearing and discussion, until a less objectionable expedient should be applied for guarding against a dangerous union of the legislative and executive departments.

Col. Mason. This motion was made some time ago, and negatived by a very large majority. He trusted that it would be again negatived. It would be impossible to

define the misbehavior 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 behavior 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.

Mr. Madison was not apprehensive of being thought to favor any step towards monarchy. The real object with him was to prevent its introduction. Experience had proved a tendency in our government to throw all power into legislative vortex. The Executives of the States are in general little more than ciphers; the Legislatures omnipotent. If no effectual check be devised for restraining the instability and encroachments of the latter, a revolution of some kind or other would be inevitable. The preservation of republican government, therefore, required some expedient for that purpose, but required evidently, at the same time, that, in devising it, the genuine principles of that form should be kept in view.

Mr. Gouverneur Morris was as little a friend to monarchy as any gentleman. He concurred in the opinion, that the way to keep out monarchical government was o establish such a republican government as would make the people happy, and prevent a desire of change.

Dr. McClurg was not so much afraid of the shadow of monarchy as to be unwilling to approach it; nor so wedded to republican government as not to be sensible of the tyrannies that had been and may be exercised under that form. It was an essential object with him to make the Executive independent of the Legislature; and the only mode left for effecting it after the vote destroying his eligibility a second time, was to appoint him during good behavior.

On the question for inserting "during good behavior," in place of "seven years," (with a re-eligibility,) it passed in the negative.

New Jersey, Pennsylvania, Delaware, Virginia, aye, 4; Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, no, 6.

aye, 4; Connecticut, New Elliott's Deb., vol. v., 325.

On the motion to strike out "seven years," it passed in the negative. Massachusetts, Pennsylvania, Delaware, North Carolina, Jersey, Maryland, Virginia, South Carolina, Georgia, no, 6. On the question, "Shall the Executive continue for seven years?" it was negatived by the following vote :

Connecticut, South Carolina, Georgia, aye, 3; New Jersey, Pennsylvania, Delaware, Maryland, Virginia, no, 5; Massachusetts, North Carolina, divided.

Mr. King was afraid we should shorten the term too much. Mr. Gouverneur Morris was for a short term in order to avoid impeachments, which would be otherwise necessary. Mr. Butler was against the frequency of elections. Georgia and South Carolina were too distant to send electors often. Mr. Ellsworth was for six years. If the elections be too frequent the Executive will not be firm enough. There must be duties which will make him unpopular for the moment. There will be outs as well as ins. His administration, therefore, will be attacked and misrepresented. Mr. Williamson was for six years. The expense will he considerable, and ought not to be unnecessarily repeated. If the elections are too frequent, the best men will not undertake the service, and those of an inferior character will be liable to be corrupted.

On the question for six years-Massachusetts, Connecticut, New Jersey, Pennsylva

nia, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye, 9; Delaware, no.

5 Elliott's Deb., 339.

Afterwards, on motion of Col. Mason, it was agreed "That the Executive be appointed for seven years, and be ineligible a second time." Ibid., 369.

The subject was subsequently referred to a Committee, which reported in favor of a term of four years, and that was finally adopted.

The tenure of Senators was at first fixed at seven years, which was opposed by Roger Sherman, who preferred five years, and by Mr. Pierce, who was in favor of three years. Messrs. Randolph and Madison continued the discussion as follows:

Mr. Randolph was for the term of seven years. The democratic licentiousness of the State Legislatures proved the necessity of a firm Senate. The object of this second branch is to control the democratic branch of the National Legislature. If it be not a firm body, the other branch, being more numerous, and coming immediately from the people, will overwhelm it. The Senate of Maryland, constituted on like principles, had been scarcely able to stem the popular torrent. No mischief can be apprehended, as the concurrence of the other branch, and in some measure of the Executive, will in all cases be necessary. A firmness and independence may be the more necessary, also, in this branch, as it ought to guard the Constitution against encroachments of the Executive, who will be apt to form combinations with the demagogues of the popular branch.

Mr. Madison considered seven years as a term by no means too long. What we wished was, to give to the government that stability which was everywhere called for, and which the enemies of the republican form alleged to be inconsistent with its nature. He was not afraid of giving too much stability by the term of seven years. His fear was, that the popular branch would still be too great an overmatch for it, It was to be much lamented that we had so little direct experience to guide us. The Constitution of Maryland was the only one that bore any analogy to this part of the plan. In no instance had the Senate of Maryland created just suspicions of danger from it. In some instances, perhaps, it may have erred by yielding to the House of Delegates. In every instance of their opposition to the measures of the House of Delegates, they had had with them the suffrages of the most enlightened and impartial people of the other States, as well as their own. In the States where the Senates were chosen in the same manner as the other branches of the Legislature, and held their seats for four years, the institution was found to be no check whatever against the instabilities of the other branches. He conceived it to be of great importance that a stable and firm government, organized in the republican form, should be held out to the people. If this be not done; and the people be left to judge of this species of government by the operations of the defective systems under which they now live, it is much to be feared the time is not distant, when, in universal disgust, they will renounce the blessing which they have purchased at so dear a rate, and be ready for any change that may be proposed to them. 5 Elliott's Debates, 186.

On the question for seven years as the term for senators, eight States gave their votes in the affirmative, Connecticut against it, and Massachusetts and New York were divided. 5 lbid., 187. When the subject afterwards again came under consideration, Mr. Gorham suggested "four years, one-fourth to be elected every year." Mr. Randolph "supported the idea of rotation as favorable to the wisdom and stability of the corps,