Debate in North Carolina Ratifying Convention24--25, 28 July 1788Elliot 4:32--37, 43--50, 126--28
Mr. Joseph Taylor objected to the provision made for impeaching. He urged that there could be no security from it, as the persons accused were triable by the Senate, who were a part of the legislature themselves; that, while men were fallible, the senators were liable to errors, especially in a case where they were concerned themselves.
Mr. Iredell. Mr. Chairman, I was going to observe that this clause, vesting the power of impeachment in the House of Representatives, is one of the greatest securities for a due execution of all public offices. Every government requires it. Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct, but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him, may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him. I beg leave to mention that every man has a right to express his opinion, and point out any part of the Constitution which he either thinks defective, or has heard represented to be so. What will be the consequence if they who have objections do not think proper to communicate them, and they are not to be mentioned by others? Many gentlemen have read many objections, which perhaps have made impressions on their minds, though they are not communicated to us. I therefore apprehend that the member was perfectly regular in mentioning the objections made out of doors. Such objections may operate upon the minds of gentlemen, who, not being used to convey their ideas in public, conceal them out of diffidence.
Mr. Bloodworth wished to be informed, whether this sole power of impeachment, given to the House of Representatives, deprived the state of the power of impeaching any of its members.
Mr. Spaight answered, that this impeachment extended only to the officers of the United States--that it would be improper if the same body that impeached had the power of trying--that, therefore, the Constitution had wisely given the power of impeachment to the House of Representatives, and that of trying impeachments to the Senate.
Mr. Joseph Taylor. Mr. Chairman, the objection is very strong. If there be but one body to try, where are we? If any tyranny or oppression should arise, how are those who perpetrated such oppression to be tried and punished? By a tribunal consisting of the very men who assist in such tyranny. Can any tribunal be found, in any community, who will give judgment against their own actions? Is it the nature of man to decide against himself? I am obliged to the worthy member from New Hanover for assisting me with objections. None can impeach but the representatives; and the impeachments are to be determined by the senators, who are one of the branches of power which we dread under this Constitution.
His excellency, Gov. Johnston. Mr. Chairman, the worthy member from Granville surprises me by his objection. It has been explained by another member, that only officers of the United States were impeachable. I never knew any instance of a man being impeached for a legislative act; nay, I never heard it suggested before. No member of the House of Commons, in England, has ever been impeached before the Lords, nor any lord, for a legislative misdemeanor. A representative is answerable to no power but his constituents. He is accountable to no being under heaven but the people who appointed him.
Mr. Taylor replied, that it now appeared to him in a still worse light than before.
Mr. Bloodworth observed, that as this was a Constitution for the United States, he should not have made the observation he did, had the subject not been particularly mentioned--that the words "sole power of impeachment" were so general, and might admit of such a latitude of construction, as to extend to every legislative member upon the continent, so as to preclude the representatives of the different states from impeaching.
Mr. Maclaine. Mr. Chairman, if I understand the gentleman rightly, he means that Congress may impeach all the people or officers of the United States. If the gentleman will attend, he will see that this is a government for confederated states; that, consequently, it can never intermeddle where no power is given. I confess I can see no more reason to fear in this case than from our own General Assembly. A power is given to our own state Senate to try impeachments. Is it not necessary to point out some tribunal to try great offences? Should there not be some mode of punishment for the offences of the officers of the general government? Is it not necessary that such officers should be kept within proper bounds? The officers of the United States are excluded from offices of honor, trust, or profit, under the United States, on impeachment for, and conviction of, high crimes and misdemeanors. This is certainly necessary. This exclusion from office is harmless in comparison with the regulation made, in similar cases, in our own government. Here it is expressly provided how far the punishment shall extend, and that it shall extend no farther. On the contrary, the limits are not marked in our own Constitution, and the punishment may be extended too far. I believe it is a certain and known fact, that members of the legislative body are never, as such, liable to impeachment, but are punishable by law for crimes and misdemeanors in their personal capacity. For instance; the members of Assembly are not liable to impeachment, but, like other people, are amenable to the law for crimes and misdemeanors committed as individuals. But in Congress, a member of either house can be no officer.
Gov. Johnston. Mr. Chairman, I find that making objections is useful. I never thought of the objection made by the member from New Hanover. I never thought that impeachments extended to any but officers of the United States. When you look at the judgment to be given on impeachments, you will see that the punishment goes no farther than to remove and disqualify civil officers of the United States, who shall, on impeachment, be convicted of high misdemeanors. Removal from office is the punishment--to which is added future disqualification. How could a man be removed from office who had no office? An officer of this state is not liable to the United States. Congress could not disqualify an officer of this state. No body can disqualify, but that body which creates. We have nothing to apprehend from that article. We are perfectly secure as to this point. I should laugh at any judgment they should give against any officer of our own.
Mr. Bloodworth. From the complexion of the paragraph it appeared to me to be applicable only to officers of the United States; but the gentleman's own reasoning convinces me that he is wrong. He says he would laugh at them. Will the gentleman laugh when the extension of their powers takes place? It is only by our adoption they can have any power.
Mr. Iredell. Mr. Chairman, the argument of the gentleman last up is founded upon misapprehension. Every article refers to its particular object. We must judge of expressions from the subject matter concerning which they are used. The sole power of impeachment extends only to objects of the Constitution. The Senate shall only try impeachments arising under the Constitution. In order to confirm and illustrate that position, the gentleman who spoke before explained it in a manner perfectly satisfactory to my apprehension--"under this Constitution." What is the meaning of these words? They signify those arising under the government of the United States. When this government is adopted, there will be two governments to which we shall owe obedience. To the government of the Union, in certain defined cases--to our own state government in every other case. If the general government were to disqualify me from any office which I held in North Carolina under its laws, I would refer to the Constitution, and say that they violated it, as it only extended to officers of the United States.
Mr. Bloodworth. The penalty is only removal from office. It does not mention from what office. I do not see any thing in the expression that convinces me that I was mistaken. I still consider it in the same light.
Mr. Porter wished to be informed, if every officer, who was a creature of that Constitution, was to be tried by the Senate--whether such officers, and those who had complaints against them, were to go from the extreme parts of the continent to the seat of government, to adjust disputes.
Mr. Davie answered, that impeachments were confined to cases under the Constitution, but did not descend to petty offices; that if the gentleman meant that it would be troublesome and inconvenient to recur to the federal courts in case of oppressions by officers, and to carry witnesses such great distances, he would satisfy the gentleman, that Congress would remove such inconveniences, as they had the power of appointing inferior tribunals, where such disputes would be tried.
Mr. J. Taylor. Mr. Chairman, I conceive that, if this Constitution be adopted, we shall have a large number of officers in North Carolina under the appointment of Congress. We shall undoubtedly, for instance, have a great number of tax-gatherers. If any of these officers shall do wrong, when we come to fundamental principles, we find that we have no way to punish them but by going to Congress, at an immense distance, whither we must carry our witnesses. Every gentleman must see, in these cases, that oppressions will arise. I conceive that they cannot be tried elsewhere. I consider that the Constitution will be explained by the word "sole." If they did not mean to retain a general power of impeaching, there was no occasion for saying the "sole power." I consider therefore that oppressions will arise. If I am oppressed, I must go the House of Representatives to complain. I consider that, when mankind are about to part with rights, they ought only to part with those rights which they can with convenience relinquish, and not such as must involve them in distresses.
In answer to Mr. Taylor, Mr. Spaight observed that, though the power of impeachment was given, yet it did not say that there was no other manner of giving redress--that it was very certain and clear that, if any man was injured by an officer of the United States, he could get redress by a suit at law.
Mr. Maclaine. Mr. Chairman, I confess I never heard before that a tax-gatherer was worthy of impeachment. It is one of the meanest and least offices. Impeachments are only for high crimes and misdemeanors. If any one is injured in his person or property, he can get redress by a suit at law. Why does the gentleman talk in this manner? It shows what wretched shifts gentlemen are driven to. I never heard, in my life, of such a silly objection. A poor, insignificant, petty officer amenable to impeachment!
Mr. Iredell. Mr. Chairman, the objection would be right if there was no other mode of punishing. But it is evident that an officer may be tried by a court of common law. He may be tried in such a court for common-law offences, whether impeached or not. As it is to be presumed that inferior tribunals will be constituted, there will be no occasion for going always to the Supreme Court, even in cases where the federal courts have exclusive jurisdiction. Where this exclusive cognizance is not given them, redress may be had in the common-law courts in the state; and I have no doubt such regulations will be made as will put it out of the power of officers to distress the people with impunity.
Gov. Johnston observed, that men who were in very high offices could not be come at by the ordinary course of justice; but when called before this high tribunal and convicted, they would be stripped of their dignity, and reduced to the rank of their fellow-citizens, and then the courts of common law might proceed against them.
Mr. John Blount said, that the sole power of impeachment had been objected to yesterday, and that it was urged, officers were to be carried from the farthest parts of the states to the seat of government. He wished to know if gentlemen were satisfied.
Mr. Maclaine. Mr. Chairman, I have no inclination to get up a second time, but some gentlemen think this subject ought to be taken notice of. I recollect it was mentioned by one gentleman, that petty officers might be impeached. It appears to me, sir, to be the most horrid ignorance to suppose that every officer, however trifling his office, is to be impeached for every petty offence; and that every man, who should be injured by such petty officers, could get no redress but by this mode of impeachment, at the seat of government, at the distance of several hundred miles, whither he would be obliged to summon a great number of witnesses. I hope every gentleman in this committee must see plainly that impeachments cannot extend to inferior officers of the United States. Such a construction cannot be supported without a departure from the usual and well-known practice both in England and America. But this clause empowers the House of Representatives, which is the grand inquest of the Union at large, to bring great offenders to justice. It will be a kind of state trial for high crimes and misdemeanors. I remember it was objected yesterday, that the House of Representatives had the sole power of impeachment. The word "sole" was supposed to be so extensive as to include impeachable offences against particular states. Now, for my part, I can see no impropriety in the expression. The word relates to the general objects of the Union. It can only refer to offences against the United States; nor can it be tortured so as to have any other meaning, without a perversion of the usual meaning of language. The House of Representatives is to have the sole power of impeachment, and the Senate the sole power of trying. And here is a valuable provision, not to be found in other governments.
In England, the Lords, who try impeachments, declare solemnly, upon honor, whether the persons impeached be guilty or not. But here the senators are on oath. This is a very happy security. It is further provided, that, when the President is tried, (for he is also liable to be impeached,) the chief justice shall preside in the Senate; because it might be supposed that the Vice-President might be connected, together with the President, in the same crime, and would therefore be an improper person to judge him. It would be improper for another reason. On the removal of the President from office, it devolves on the Vice-President. This being the case, if the Vice-President should be judge, might he not look at the office of President, and endeavor to influence the Senate against him? This is a most excellent caution. It has been objected by some, that the President is in no danger from a trial by the Senate, because he does nothing without its concurrence. It is true, he is expressly restricted not to make treaties without the concurrence of two thirds of the senators present, nor appoint officers without the concurrence of the Senate, (not requiring two thirds.) The concurrence of all the senators, however, is not required in either of those cases. They may be all present when he is impeached, and other senators in the mean time introduced. The chief justice, we ought to presume, would not countenance a collusion. One dissenting person might divulge their misbehavior. Besides, he is impeachable for his own misdemeanors, and as to their concurrence with him, it might be effected by misrepresentations of his own, in which case they would be innocent, though he be guilty. I think, therefore, the Senate a very proper body to try him. Notwithstanding the mode pointed out for impeaching and trying, there is not a single officer but may be tried and indicted at common law; for it is provided, that a judgment, in cases of impeachment, shall not extend farther than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment, according to law. Thus you find that no offender can escape the danger of punishment. Officers, however, cannot be oppressed by an unjust decision of a bare majority; for it further provides, that no person shall be convicted without the concurrence of two thirds of the members present; so that those gentlemen who formed this government have been particularly careful to distribute every part of it as equally as possible. As the government is solely instituted for the United States, so the power of impeachment only extends to officers of the United States. The gentleman who is so much afraid of impeachment by the federal legislature, is totally mistaken in his principles.
Mr. J. Taylor. Mr. Chairman, my apprehension is, that this clause is connected with the other, which gives the sole power of impeachment, and is very dangerous. When I was offering an objection to this part, I observed that it was supposed by some, that no impeachments could be preferred but by the House of Representatives. I concluded that perhaps the collectors of the United States, or gatherers of taxes, might impose on individuals in this country, and that these individuals might think it too great a distance to go to the seat of federal government to get redress, and would therefore be injured with impunity. I observed that there were some gentlemen, whose abilities are great, who construe it in a different manner. They ought to be kind enough to carry their construction not to the mere letter, but to the meaning. I observe that, when these great men are met in Congress, in consequence of this power, they will have the power of appointing all the officers of the United States. My experience in life shows me that the friends of the members of the legislature will get the offices. These senators and members of the House of Representatives will appoint their friends to all offices. These officers will be great men, and they will have numerous deputies under them. The receiver-general of the taxes of North Carolina must be one of the greatest men in the country. Will he come to me for his taxes? No. He will send his deputy, who will have special instructions to oppress me. How am I to be redressed? I shall be told that I must go to Congress, to get him impeached. This being the case, whom am I to impeach? A friend of the representatives of North Carolina. For, unhappily for us, these men will have too much weight for us; they will have friends in the government who will be inclined against us, and thus we may be oppressed with impunity.
I was sorry yesterday to hear personal observations drop from a gentleman in this house. If we are not of equal ability with the gentleman, he ought to possess charity towards us, and not lavish such severe reflections upon us in such a declamatory manner.
These are considerations I offer to the house. These oppressions may be committed by these officers. I can see no mode of redress. If there be any, let it be pointed out. As to personal aspersions, with respect to me, I despise them. Let him convince me by reasoning, but not fall on detraction or declamation.
Mr. Maclaine. Mr. Chairman, if I made use of any asperity to that gentleman yesterday, I confess I am sorry for it. It was because such an observation came from a gentleman of his profession. Had it come from any other gentleman in this Convention, who is not of his profession, I should not be surprised. But I was surprised that it should come from a gentleman of the law, who must know the contrary perfectly well. If his memory had failed him, he might have known by consulting his library. His books would have told him that no petty officer was ever impeachable. When such trivial, ill-founded objections were advanced, by persons who ought to know better, was it not sufficient to irritate those who were determined to decide the question by a regular and candid discussion?
Whether or not there will be a receiver-general in North Carolina, if we adopt the Constitution, I cannot take upon myself to say. I cannot say how Congress will collect their money. It will depend upon laws hereafter to be made. These laws will extend to other states as well as to us. Should there be a receiver-general in North Carolina, he certainly will not be authorized to oppress the people. His deputies can have no power that he could not have himself. As all collectors and other officers will be bound to act according to law, and will, in all probability, be obliged to give security for their conduct, we may expect they will not dare to oppress. The gentleman has thought proper to lay it down as a principle, that these receivers-general will give special orders to their deputies to oppress the people. The President is the superior officer, who is to see the laws put in execution. He is amenable for any maladministration in his office. Were it possible to suppose that the President should give wrong instructions to his deputies, whereby the citizens would be distressed, they would have redress in the ordinary courts of common law. But, says he, parties injured must go to the seat of government of the United States, and get redress there. I do not think it will be necessary to go to the seat of the general government for that purpose. No persons will be obliged to attend there, but on extraordinary occasions; for Congress will form regulations so as to render it unnecessary for the inhabitants to go thither, but on such occasions.
My reasons for this conclusion are these: I look upon it as the interest of all the people of America, except those in the vicinity of the seat of government, to make laws as easy as possible for the people, with respect to local attendance. They will not agree to drag their citizens unnecessarily six or seven hundred miles from their homes. This would be equally inconvenient to all except those in the vicinity of the seat of government, and therefore will be prevented. But, says the gentleman from Granville, what redress have we when we go to that place? These great officers will be the friends of the representatives of North Carolina. It is possible they may, or they may not. They have the power to appoint officers for each state from what place they please. It is probable they will appoint them out of the state in which they are to act. I will, however, admit, for the sake of argument, that those federal officers who will be guilty of misdemeanors in this state will be near relations of the representatives and senators of North Carolina. What then? Are they to be tried by them only? Will they be the near friends of the senators and representatives of the other states? If not, his objection goes for nothing. I do not understand what he says about detraction and declamation. My character is well known. I am no declaimer; but when I see a gentleman, ever so respectable, betraying his trust to the public, I will publish it loudly; and I say this is not detraction or declamation.
Gov. Johnston. Mr. Chairman, impeachment is very different in its nature from what the learned gentleman from Granville supposes it to be. If an officer commits an offence against an individual, he is amenable to the courts of law. If he commits crimes against the state, he may be indicted and punished. Impeachment only extends to high crimes and misdemeanors in a public office. It is a mode of trial pointed out for great misdemeanors against the public. But I think neither that gentleman nor any other person need be afraid that officers who commit oppressions will pass with impunity. It is not to be apprehended that such officers will be tried by their cousins and friends. Such cannot be on the jury at the trial of the cause; it being a principle of law that no person interested in a cause, or who is a relation of the party, can be a juror in it. This is the light in which it strikes me. Therefore the objection of the gentleman from Granville must necessarily fall to the ground on that principle.
Mr. Maclaine. Mr. Chairman, I must obviate some objections which have been made. It was said, by way of argument, that they could impeach and remove any officer, whether of the United States or any particular state. This was suggested by the gentleman from New Hanover. Nothing appears to me more unnatural than such a construction. The Constitution says, in one place, that the House of Representatives shall have the sole power of impeachment. In the clauses under debate, it provides that the Senate shall have the sole power to try all impeachments, and then subjoins, that judgment, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States. And in the 4th section of the 2d article, it says that the President, Vice-President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
Now, sir, what can be more clear and obvious than this? The several clauses relate to the same subject, and ought to be considered together. If considered separately and unconnectedly, the meaning is still clear. They relate to the government of the Union altogether. Judgment on impeachment only extends to removal from office, and future disqualification to hold offices under the United States. Can those be removed from offices, and disqualified to hold offices under the United States, who actually held no office under the United States? The 4th section of the 2d article provides expressly for the removal of the President, Vice-President, and all civil officers of the United States, on impeachment and conviction. Does not this clearly prove that none but officers of the United States are impeachable? Had any other been impeachable, why was not provision made for the case of their conviction? Why not point out the punishment in one case as well as in others? I beg leave to observe, that this is a Constitution which is not made with any reference to the government of any particular state, or to officers of particular states, but to the government of the United States at large.
We must suppose that every officer here spoken of must be an officer of the United States. The words discover the meaning as plainly as possible. The sentence which provides that "judgment, in cases of impeachment, shall not extend further than to removal from office," is joined by a conjunction copulative to the other sentence,--"and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States,"--which incontrovertibly proves that officers of the United States only are referred to. No other grammatical construction can be put upon it. But there is no necessity to refer to grammatical constructions, since the whole plainly refers to the government of the United States at large. The general government cannot intermeddle with the internal affairs of the state governments. They are in no danger from it. It has been urged that it has a tendency to a consolidation. On the contrary, it appears that the state legislatures must exist in full force, otherwise the general government cannot exist itself. A consolidated government would never secure the happiness of the people of this country. It would be the interest of the people of the United States to keep the general and individual governments as separate and distinct as possible.
Mr. Bloodworth. Mr. Chairman, I confess I am obliged to the honorable gentleman for his construction. Were he to go to Congress, he might put that construction on the Constitution. But no one can say what construction Congress will put upon it. I do not distrust him, but I distrust them. I wish to leave no dangerous latitude of construction.
[James Iredell] God forbid that a man, in any country in the world, should be liable to be punished for want of judgment. This is not the case here. As to errors of the heart, there is sufficient responsibility. Should these be committed, there is a ready way to bring him to punishment. This is a responsibility which answers every purpose that could be desired by a people jealous of their liberty. I presume that, if the President, with the advice of the Senate, should make a treaty with a foreign power, and that treaty should be deemed unwise, or against the interest of the country, yet if nothing could be objected against it but the difference of opinion between them and their constituents, they could not justly be obnoxious to punishment. If they were punishable for exercising their own judgment, and not that of their constituents, no man who regarded his reputation would accept the office either of a senator or President. Whatever mistake a man may make, he ought not to be punished for it, nor his posterity rendered infamous. But if a man be a villain, and wilfully abuse his trust, he is to be held up as a public offender, and ignominiously punished. A public officer ought not to act from a principle of fear. Were he punishable for want of judgment, he would be continually in dread; but when he knows that nothing but real guilt can disgrace him, he may do his duty firmly, if he be an honest man; and if he be not, a just fear of disgrace may, perhaps, as to the public, have nearly the effect of an intrinsic principle of virtue. According to these principles, I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other. If the President had received a bribe, without the privity or knowledge of the Senate, from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty,--if it appeared afterwards that this was the case, would not that Senate be as competent to try him as any other persons whatsoever? Would they not exclaim against his villany? Would they not feel a particular resentment against him, for being made the instrument of his treacherous purposes? In this situation, if any objection could be made against the Senate as a proper tribunal, it might more properly be made by the President himself, lest their resentment should operate too strongly, rather than by the public, on the ground of a supposed partiality. The President must certainly be punishable for giving false information to the Senate. He is to regulate all intercourse with foreign powers, and it is his duty to impart to the Senate every material intelligence he receives. If it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them,--in this case, I ask whether, upon an impeachment for a misdemeanor upon such an account, the Senate would probably favor him. With respect to the impeachability of the Senate, that is a matter of doubt.
There have been no instances of impeachment for legislative misdemeanors; and we shall find, upon examination, that the inconveniences resulting from such impeachments would more than preponderate the advantages. There is no greater honor in the world than being the representative of a free people. There is no trust on which the happiness of the people has a greater dependence. Yet who ever heard of impeaching a member of the legislature for any legislative misconduct? It would be a great check on the public business, if a member of the Assembly was liable to punishment for his conduct as such. Unfortunately, it is the case, not only in other countries, but even in this, that division and differences in opinion will continually arise. On many questions there will be two or more parties. These often judge with little charity of each other, and attribute every opposition to their own system to an ill motive. We know this very well from experience; but, in my opinion, this constant suspicion is frequently unjust. I believe, in general, both parties really think themselves right, and that the majority of each commonly act with equal innocence of intention. But, with the usual want of charity in these cases, how dangerous would it be to make a member of the legislature liable to impeachment! A mere difference of opinion might be interpreted, by the malignity of party, into a deliberate, wicked action.
It therefore appears to me at least very doubtful whether it would be proper to render the Senate impeachable at all especially as, in the branches of executive government, where their concurrence is required, the President is the primary agent, and plainly responsible, and they, in fact, are but a council to validate proper, or restrain improper, conduct in him; but if a senator is impeachable, it could only be for corruption, or some other wicked motive, in which case, surely those senators who had acted from upright motives would be competent to try him.
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.
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