matters which he shall lay before them; but their advice shall not conclude him, nor affect his responsibility."* The report did not satisfy the convention, which, still hopeful and persevering, referred the subject to the grand committee of the eleven states. The report of the committee, made on the fourth of September, did no more than permit the executive to "require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of his office." "In rejecting a council to the president," such were the final words of Mason, "we are about to try an experiment on which the most despotic government has never ventured; the Grand Seignior himself has his Divan;” and he proposed an executive council to be appointed by the legislature or by the senate, and to consist of two members from the eastern, two from the middle, and two from the southern states; with a rotation and duration of office similar to those of the senate. He was seconded by Franklin, who “ thought a council would be a check on a bad president, a relief to a good one." # Wilson "approved of a council, in preference to making the senate a party to appointments." So did Dickinson and Madison; but the motion gained only three states; I and then by a unanimous vote the president was authorized to take written opinions of the heads of departments, who thus became his constitutional advisers. A The failure to establish an efficient council led the convention most reluctantly to vest the senate with some control over acts of the executive. On the seventh it was agreed "that the president shall have the power to make treaties by and with the advice and consent of the senate."◊ "And of the house of representatives," Wilson would have added; saying: "As treaties are to have the operation of laws, they ought to have the sanction of laws." But Sherman represented that the necessity of secrecy forbade a reference to both houses, and every state assented except Pennsylvania. † * Gilpin, 1398, 1399; Elliot, 462, Gilpin, 1488; Elliot, 507. Gilpin, 1523; Elliot, 525. # Ibid. Gilpin, 1524; Elliot, 526. ▲ Ibid. ◊ Gilpin, 1519, Elliot, 523. Gilpin, 1519; Elliot, 523. It has already been related that to diminish the temptation to war, the power to declare it was confided to the legislature. In treaties of peace, Madison, fearing in a president a passion for continuing war, proposed to dispen.c with his concurrence. "The means of carrying on the war," said Gorham, "will not be in the hands of the president, but of the legislature." "No peace," insisted Gouverneur Morris, "ought to be made without the concurrence of the president, who is the general guardian of the nation." And Maryland, South Carolina, and Georgia alone voted for the amendment.* On the seventh, the advice and consent of the senate was, by a unanimous vote, required for the appointment of ambassadors, other public ministers, consuls, and judges of the supreme court; and for all other officers of the United States by nine states against Pennsylvania and South Carolina. + But eight days later the legislature was authorized to vest the appointment of inferior officers in the president alone, in the courts of law, or in the heads of departments.# All agreed in giving the president power to fill up, temporarily, vacancies that might happen during the recess of the senate. Had the consent of the senate been made necessary to displace as well as to appoint, the executive would have suffered degradation; and the relative importance of the house of representatives a grave diminution. To change the tenure of office from the good opinion of the president, who is the employer and needs efficient agents in executing the laws, to the favor of the senate, which has no executive powers, would create a new fealty alien to the duties of an officer of the United States. "The three distinct powers, legislative, judicial, and executive," said Ellsworth, as senator, in 1789, explaining the constitution which he had done so much to frame, "should be placed in different hands. He shall take care that the laws be faithfully executed, are sweeping words. The officers should be attentive to the president, to whom the senate is not a coun * Gilpin, 1521, 1522; Elliot, 524, 525. + Glipin, 1520; Elliot, 523, 524. Gilpin, 1520; Elliot, 524. # Gilpin, 1588, 1589; Elliot, 550. Gilpin, 1520; Elliot, 524. cil. To turn a man out of office is an exercise neither of legislative nor of judicial power. The advice of the senate does not make the appointment; the president appoints: there are certain restrictions in certain cases, but the restriction is as to the appointment and not as to the removal." * One question on the qualifications of the president was among the last to be decided. On the twenty-second of August the committee of detail, fixing the requisite age of the president at thirty-five, on their own motion and for the first time required that the president should be a citizen of the United States, and should have been an inhabitant of them for twentyone years. The idea then arose that no number of years could properly prepare a foreigner for the office of president; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, the committee of states who were charged with all unfinished business proposed, on the fourth of September, that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, should be eligible to the office of president," and for the foreign-born proposed a reduction of the requisite years of residence to fourteen. On the seventh of September the modification, with the restriction as to the age of the president, was unanimously adopted. No majorities of the legislature could force a president to retire before the end of his term; but he might be impeached by the house of representatives for treason, bribery, or other high crimes and misdemeanors. The tribunal for his arraignment was at first the supreme court of the United States; but they would be few in number; the president, after condemnation, might be further amenable to them; and besides, they would be of his appointment. Hamilton had suggested a forum composed of the chief justice of each state. Contrary to the opinion of Madison, the English precedent was followed, and the senate was made the court to try all officers liable to impeachment; and, on conviction by a two thirds vote, to remove them. As the vice-president, on the president's removal, *MS. report of Ellsworth's speech by William Paterson. Gilpin, 1398; Elliot, 462. Gilpin, 892, 1158; Elliot, 205, 342. would succeed to his place, the chief justice was directed to preside on the trial of the president. At so late a day as the fourteenth of September, Rutledge and Gouverneur Morris moved that persons impeached be suspended from their offices until they be tried and acquitted; but Madison defeated the proposition by pointing out that this intermediate suspension would put it in the power of one branch only to vote a temporary removal of the existing magistrate.* Judgment in cases of impeachment could extend only to removal from office and disqualification; but the party remained liable to indictment, trial, and punishment, according to law. The trial of all crimes, except in cases of impeachment, could be only by jury. * Gilpin, 1572; Elliot, 542. VOL. VI.-24 CHAPTER X. THE FEDERAL JUDICIARY. AUGUST AND SEPTEMBER 1787. THE resolution on the federal judiciary which went from the convention to the committee of detail purposely described the extent of its jurisdiction in vague and general terms. The very able lawyers on that committee, Rutledge, Wilson, Randolph, and Ellsworth, proceeding with equal boldness and precision, shrinking from aggressions on the rights of the states and yet entertaining efficient and comprehensive designs, brought in a report, which caused little diversity of opinion, and was held to need no essential amendment. But on one point they kept silence. A deeply-seated dread of danger from hasty legislation pervaded the mind of the convention; and Mason, Madison, and others persistently desired to vest in the supreme court a revisionary power over the acts of congress, with an independent negative, or a negative in conjunction with the executive. Though the measure had been repeatedly brought forward and as often put aside, Madison, on the fifteenth of August, proposed once more that "Every bill which shall have passed the two houses shall, before it becomes a law, be severally presented to the president of the United States, and to the judges of the supreme court, for the revision of each;" the veto of the judges not to be overthrown by less than two thirds, nor, if the president joined them, by less than three fourths of each house. He was seconded by Wilson. Charles Pinckney opposed the interference of the judges in legislation, because it would involve them in the conflict of Gilpin, 1332; Elliot, 428. * |