first essay, in America, to establish a federative government had fallen, on trial, very short of its object. During the war of Independence, while the pressure of an external enemy hooped us together, and their enterprises kept us necessarily on the alert, the spirit of the people, excited by danger, was a supplement to the Confederation, and urged them to zealous exertions, whether claimed by that instrument or not; but, when peace and safety were restored, and every man became engaged in useful and profitable occupation, less attention was paid to the calls of Congress. The fundamental defect of the Confederation was, that Congress was not authorized to act immediately on the people, and by its own officers. Their power was only requisitory, and these requisitions were addressed to the several Legislatures, to be by them carried into execution, without other coercion than the moral principle of duty. This allowed, in fact, a negative to every legislature, on every measure proposed by Congress; a negative so frequently exercised in practice, as to benumb the action of the Federal government, and to render it inefficient in its general objects, and more especially in pecuniary and foreign concerns. The want, too, of a separation of the Legislative, Executive, and Judiciary functions, worked disadvantageously in practice. Yet this state of things afforded a happy augury of the future march of our Confederacy, when it was seen that the good sense and good dispositions of the people, as soon as they perceived the incompetence of their first compact, instead of leaving its correction to insurrection and civil war, agreed, with one voice, to elect deputies to a general Convention, who should peaceably meet and agree on such a Constitution as ‘would ensure peace, justice, liberty, the common defence, and general welfare.’
This Convention met at Philadelphia on the 25th of May, ‘87. It sat with closed doors, and kept all its proceedings secret, until its dissolution on the 17th of September, when the results of its labors were published all together. I received a copy, early in November, and read and contemplated its provisions with great satisfaction. As not a member of the Convention, however, nor probably a single citizen of the Union, had approved it in all its parts, so I, too, found articles which I thought objectionable. The absence of express declarations ensuring freedom of religion, freedom of the press, freedom of the person under the uninterrupted protection of the habeas corpus and trial by jury in civil, as well as in criminal cases, excited my jealousy; and the re-eligibility of the President for life, I quite disapproved. I expressed freely, in letters to my friends, and most particularly to Mr. Madison and General Washington, my approbations and objections. How the good should be secured, and the ill brought to rights, was the difficulty. To refer it back to a new Convention, might endanger the loss of the whole. My first idea was, that the nine states first acting, should accept it unconditionally, and thus secure what in it was good, and that the four last should accept on the previous condition, that certain amendments should be agreed to; but a better course was devised, of accepting the whole, and trusting that the good sense and honest intentions of our citizens would make the alterations which should be deemed necessary. Accordingly, all accepted, six without objection, and seven with recommendations of specified amendments. Those respecting the press, religion, and juries, with several others, of great value, were accordingly made; but the habeas corpus was left to the discretion of Congress, and the amendment against the re-eligibility of the President was not proposed. My fears of that feature were founded on the importance of the office, on the fierce contentions it might excite among ourselves, if continuable for life, and the dangers of interference, either with money or arms, by foreign nations, to whom the choice of an American President might become interesting. Examples of this abounded in history; in the case of the Roman Emperors, for instance; of the Popes, while of any significance; of the German Emperors; the Kings of Poland, and the Deys of Barbary. I had observed, too, in the feudal history, and in the recent instance, particularly, of the Stadtholder of Holland, how easily offices, or tenures for life, slide into inheritances. My wish, therefore, was that the President should be elected for seven years, and be ineligible afterwards. This term I thought sufficient to enable him, with the concurrence of the Legislature, to carry though and establish any system of improvement he should propose for the general good. But the practice adopted, I think, is better, allowing his continuance for eight years, with a liability to be dropped at half way of the term, making that a period of probation. That his continuance should be restrained to seven years, was the opinion of the Convention at an earlier stage of its session, when it voted that term, by a majority of eight against two, and by a simple majority, that he should be ineligible a second time. This opinion was confirmed by the House so late as July 26, referred to the Committee of detail, reported favorably by them, and changed to the present form by final vote, on the last day, but one only, of their session. Of this change, three states expressed their disapprobation; New York, by recommending an amendment, that the President should not be eligible a third time, and Virginia and North Carolina, that he should not be capable of serving more than eight, in any term of sixteen years; and although this amendment has not been made in form, yet practice seems to have established it. The example of four Presidents, voluntarily retiring at the end of their eighth year, and the progress of public opinion, that the principle is salutary, have given it in practice the force of precedent and usage; insomuch, that should a President consent to be a candidate for a third election, I trust he would be rejected, on this demonstration of ambitious views.
But there was another amendment, of which none of us thought at the time, and in the omission of which, lurks the germ that is to destroy this happy combination of National powers, in the general government, for matters of National concern, and independent powers in the States, for what concerns the States severally. In England, it was a great point gained at the Revolution, that the commissions of the Judges, which had hitherto been during pleasure, should thenceforth be made during good behavior. A Judiciary, dependant on the will of the King, had proved itself the most oppressive of all tools in the hands of that magistrate. Nothing, then, could be more salutary, than a change there, to the tenure of good behavior; and the question of good behavior, left to the vote of a simple majority in the two Houses of Parliament. Before the Revolution, we were all good English Whigs, cordial in their free principles, and in their jealousies of their Executive magistrate. These jealousies are very apparent, in all our state Constitutions; and, in the General government in this instance, we have gone even beyond the English caution, by requiring a vote of two thirds, in one of the Houses, for removing a Judge; a vote so impossible, where12 any defence is made, before men of ordinary prejudices and passions, that our Judges are effectually independent of the nation. But this ought not to be. I would not, indeed, make them dependant on the Executive authority, as they formerly were in England; but I deem it indispensable to the continuance of this government, that they should be submitted to some practical and impartial control; and that this, to be impartial, must be compounded of a mixture of State and Federal authorities. It is not enough, that honest men are appointed Judges. All know the influence of interest on the mind of man, and how unconsciously his judgment is warped by that influence. To this bias add that of the esprit de corps, of their peculiar maxim and creed, that ‘it is the office of a good Judge to enlarge his jurisdiction,’ and the absence of responsibility; and how can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual state, from which they have nothing to hope or fear? We have seen, too, that, contrary to all correct example, they are in the habit of going out of the question before them, to throw an anchor ahead, and grapple further hold for future advances of power. They are then, in fact, the corps of sappers and miners, steadily working to undermine the independent rights of the states, and to consolidate all power in the hands of that government, in which they have so important a freehold estate. But it is not by the consolidation, or concentration of powers, but by their distribution, that good government is effected. Were not this great country already divided into states, that division must be made, that each might do for itself what concerns itself directly, and what it can so much better do than a distant authority. Every state again is divided into counties, each to take care of what lies within its local bounds; each county again into townships or wards, to manage minuter details; and every ward into farms, to be governed each by its individual proprietor. Were we directed from Washington when to sow, and when to reap, we should soon want bread. It is by this partition of cares, descending in gradation from general to particular, that the mass of human affairs may be best managed, for the good and prosperity
In the impeachment of Judge Pickering, of New Hampshire, a habitual and maniac drunkard, no defence was made. Had there been, the party vote of more than one third of the Senate would have acquitted him.
