IX.

finished business limited the years of residence to CHAP. fourteen. It was then objected that no number of years could properly prepare a foreigner for that 1787. place; but as men of other lands had spilled their 4. blood in the cause of the United States, and had

Sept.

assisted at every stage of the formation of their institutions, on the seventh of September it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the constitution are eligible to the office of

7.

president.*

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, would come before them on his acts; 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, would succeed to his place, the chief justice was directed to preside on the trial.

At so late a day as the fourteenth of September, 14. Rutledge and Gouverneur Morris moved that per

Gilpin, 1487; Elliot, 507. * Gilpin, 1516; Elliot, 521.

VOL. II.

• Gilpin, 892, 1158; Elliot, 205,

342.

13

Sept.

CHAP. sons impeached be suspended from their offices until IX. they be tried and acquitted; but Madison defeated 1787. 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.'

14.

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.

CHAPTER X.

THE FEDERAL JUDICIARY.

X.

THE resolution on the federal judiciary which went CHAP. from the convention to the committee of detail purposely described the extent of its jurisdiction in 1787. 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,

X.

Aug.

CHAP. before it becomes a law, be severally presented to the president of the United States, and to the judges of 1787. the supreme court, for the revision of each;"1 the 15. 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 parties and tinge their opinions before their action in court. "The judiciary," said John Francis Mercer, of Maryland, "ought to be separate from the legislative and independent of it. I disapprove the doctrine that the judges should, as expositors of the constitution, have authority to declare a law void. Laws ought to be well and cautiously made, and then to be uncontrollable." To the regret of Gouverneur Morris, the motion of Madison carried only Maryland, Delaware, and Virginia. Dick. inson was strongly impressed with the objection to the power of the judges to set aside the law. He thought no such power ought to exist, but was at a loss for a substitute. "The justiciary of Aragon," he observed, “became by degrees the law-giver."

On the morning of the twentieth Charles Pinckney submitted numerous propositions; among them was one that "Each branch of the legislature, as well as the supreme executive, shall have authority to require the opinions of the supreme judicial court upon important questions of law, and upon solemn occa

X.

sions." This article, as well as the rest, was referred CHAP. to the committee of detail, without debate or consideration by the house, and was never again heard of. 1787. On the twenty-seventh the article on the judiciary 27.

reported by the committee of detail was taken up; and it was agreed that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States."" "The judges of the supreme court, and of the inferior courts, shall hold their offices during good behavior. They shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office." Judges of inferior courts were clothed with the same independence of the two other branches of the government as the judges of the supreme court.

3

Dickinson thought that the tenure of office was made too absolute; and, following the example of Great Britain and Massachusetts, he desired that the judges should be removable by the executive on application of the senate and the house of representatives." "If the supreme court," said Rutledge, "is to judge between the United States and particular states, this alone is an insuperable objection to the motion." The clause gained no vote but that of Connecticut, Massachusetts being absent. In England the highest judicial officer is liable to change with every change of administration, and every one

Gilpin, 1865; Elliot, i. 249. * Gilpin, 1435. As the phrase "law and equity" is repeated in

section 3, it is omitted here. El-
liot, 481.

3

Gilpin, 1437; Elliot, 482. • Gilpin, 1436; Elliot, 481.

Aug.