M^r Sherman considered such a tenure as by no means safe or admissible.
As the Executive Magistrate is now 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.
M^r Madison.[135] If it be essential to the preservation of liberty that
the Legisl: Execut: & 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 Legislure, if
dependent on the pleasure of that branch for a re-appointment. Why was
it determined that the Judges should not hold their places by such a
tenure? Because they might be tempted to cultivate the Legislature, by
an undue complaisance, and thus render the Legislature the virtual
expositor, as well as the maker of the laws. In like manner a dependence
of the Executive on the Legislature, would render it the Executor as
well as the maker of laws; & then according to the observation of
Montesquieu, tyrannical laws may be made that they may be executed in a
tyrannical manner. There was an analogy between the Executive &
Judiciary departments in several respects. The latter executed the laws
in certain cases as the former did in others. The former expounded &
applied them for certain purposes, as the latter did for others. The
difference between them seemed to consist chiefly in two
circumstances--1. the collective interest & security were much more in
the power belonging to the Executive than to the Judiciary department.
2. in the administration of the former much greater latitude is left to
opinion and discretion than in the administration of the latter. But if
the 2^d consideration proves that it will be more difficult to establish
a rule sufficiently precise for trying the Execut: than the Judges, &
forms an objection to the same tenure of office, both considerations
prove that it might be more dangerous to suffer a Union between the
Executive & Legisl: powers, than between the Judiciary & Legislative
powers. He conceived it to be absolutely necessary to a well constituted
Republic that the two first sh^d be kept distinct & independent of each
other. 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 impeachm^{ts} as certain & 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 & discussion, until a less objectionable
expedient should be applied for guarding ag^{st} a dangerous union of
the Legislative & Executive departments.
[135] The view here taken of the subject was meant to aid in
parrying the animadversions likely to fall on the motion of
D^r M^cClurg, for whom J. M. had a particular regard. The
Doc^r though possessing talents of the highest order was
modest & unaccustomed to exert them in public debate.--Note
in Madison's handwriting.
Col. Mason. This motion was made some time ago & negatived by a very
large majority. He trusted that it w^d be again negatived. It w^d be
impossible to define the misbehaviour 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 grand children 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.
M^r 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 governments to
throw all power into the Legislative vortex. The Executives of the
States are in general little more than Cyphers; the legislatures
omnipotent. If no effectual check be devised for restraining the
instability & encroachments of the latter, a revolution of some kind or
other would be inevitable. The preservation of Republican Gov^t
therefore required some expedient for the purpose, but required
evidently at the same time that in devising it, the genuine principles
of that form should be kept in view.
M^r Gov^r Morris was as little a friend to monarchy as any gentleman. He
concurred in the opinion that the way to keep out monarchical Gov^t was
to establish such a Repub. Gov^t as w^d make the people happy and
prevent a desire of change.
Doc^r McClurg was not so much afraid of the shadow of monarchy as to be
unwilling to approach it; nor so wedded to Republican Gov^t as not to be
sensible of the tyrannies that had been & 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 ineligibility a second time, was to
appoint him during good behavior.
On the question for inserting "during good behavior" in place of '7
years (with a re-eligibility)' it passed in the negative,
Mas. no. C^t no. N. J. ay. P^a ay. Del. ay. M^d no. V^a ay.
N. C. no. S. C. no. Geo. no.[136]
[136] (This vote is not considered as any certain index of
opinion, as a number in the affirmative probably had it
chiefly in view to alarm those attached to a dependence of
the Executive on the Legislature, & thereby facilitate some
final arrangement of a contrary tendency. The avowed friends
of an Executive, during good behaviour were not more than
three or four, nor is it certain they would finally have
adhered to such a tenure, an independence of the three great
departments of each other, as far as possible, and the
responsibility of all to the will of the community seemed to
be generally admitted as the true basis of a well
constructed government.)--Note in Madison's hand, except
from the words "nor is it certain" etc., which is in the
hand of his wife's brother, John C. Payne.
On the motion "to strike out seven years" it passed in the negative,
Mas. ay. C^t no. N. J. no. P^a ay. Del. ay. M^d no. V^a no. N.
C. ay. S. C. no. Geo. no.[137]
[137] (There was no debate on this motion. The apparent
object of many in the affirmative was to secure the
re-eligibility by shortening the term, and of many in the
negative to embarrass the plan of referring the appointment
and dependence of the Executive to the Legislature.)--Note
in Madison's hand.
It was now unanimously agreed that the vote which had struck out the
words "to be ineligible a second time" should be reconsidered to-morrow.
Adj^d.