The Founders' Blog

June 25, 1789

The Bills for establishing The Foreign-- Treasury, & War Departments, have occasioned a considerable ferment in The House; The Clause Removable by The President, has been strongly oppos'd-- & The Constitution has been variously Commented on, to support different opinions.

[lined out] The House seem to agree pretty generally That the Power of removing an unworthy Officer is vested by The Constitution somewhere, but where is The Question-- The Legislature-- The Judiciary-- The President & Senate and The President solely, have each been contended for and each have found Their Advocates-- A Considerable Majority of The House have determin'd that the Power of removal is vested solely in The President as The Chief Executive Magistrate But the Majority have again divided having founded Their Opinion on different principles. One part found Their Opinion on this principle-- That as it is generally agreed, The Power of removal is vested somewhere and as The Constitution has not made an express declaration it becomes The duty of the Legislature to declare by Law where this power is Lodg'd, in order to prevent Confusion hereafter-- The others found their Opinion on this principle That by a fair construction of the Constitution, The power of removal is vested in The President-- That the Legislative & Executive Powers ought not to be blended, but should allways remain seperite in every free Country-- That the Constitution vested certain Executive Powers in The Senate but that these were strictly defind, & that the residuary Powers were without doubt vested in The Supreme Executive Magistrate-- That to make a declaration by Law would imply a doubt, & that nothing more was necessary than something of the Declaratory kind expressive of the sense of The House on the subject.

Last Evening Messrs. Buttler & Huger from So. Carolina rode out in a Chaise-- The Horse took fright and run off with them-- Buttler is much hurt, & poor Huger had his Leg broke, & Shattred in a dreadfull manner, so that his life is despaird of.

If you have not been furnished with a sett of The Journals of The House-- I have one to spare.

Mr. Leonard a Representative from Massachusetts will probably set out for Philadelphia in a few days, I shall take the Liberty to introduce Him to Mr. Coxe & Yourself-- Mr Boudinott this Moment moves for an Amendment to the Amendment which implies That the Constitution vests The President with The power of removal-- This amendment, if adopted will probably reconcile the two Parties, who have voted on the same side, tho' on different Principles General Hiester will perhaps be able to inform you of The issue, should it be decided before He leaves the House-- Mr. McClay has lately spoke to me relative to The Money due him by The Trustees of Franklin College-- it seems Mr. Bingham has not yet paid it-- & therefore Mr. McClay will look to Dr. Helmuth[?] to you & myself.

I am Dear Sir Your Most Obedt. servant

P. Muhlenberg

P.S. Mr. Boudinotts Motion is withdrawn

New York, June 23, 1789

I have written so often, that my conscience did not reproach me with any neglect of duty to you, or to our good friends in the club. I am not able to write fine-spun sentiments and grave remarks, and to give my letter the ease of epistolary writing. I would write, as I am used to converse with you; and as to matter of fact, the newspapers take the advantage of me, and possess themselves of every novelty, before I could send it. You will see of course how slender materials are left me, to gratify the curiosity of our friends. The debate in relation to the President's power of removal from office, is an instance. Four days' unceasing speechifying has furnished you with the merits of the question. The transaction of yesterday may need some elucidation. In the committee of the whole, it was moved to strike out the words "to be removable by the President," & c. This did not pass, and the words were retained. The bill was reported to the house, and a motion made to insert in the second clause, "whenever an officer shall be removed by the President, or a vacancy shall happen in any other way," to the intent to strike out the first words. The first words, "to be removable," & c., were supposed to amount to a legislative disposal of the power of removal. If the Constitution had vested it in the President, it was improper to use such words as would imply that the power was to be exercised by him in virtue of this act. The mover and supporters of the amendment supposed that a grant by the legislature might be removed, and that as the Constitution had already given it to the President, it was putting it on better ground, and, if once gained by the declaration of both houses, would be a construction of the Constitution, and not liable to future encroachments. Others, who contended against the advisory power of the Senate in removals, supposed the first ground the most tenable, that it would include the latter, and operate as a declaration of the Constitution, and at the same (time) expressly dispose of the power. They further apprehended that any change of position would divide the victors, and endanger the final decision in both houses. There was certainly weight in this last opinion. Yet the amendment being actually proposed, it remained only to choose between the two clauses. I think the latter, which passed, and which seems to imply the legal (rather constitutional) power of the President, is the safest doctrine. This prevailed, and the first words were expunged. This has produced discontent, and possibly in the event it will be found disagreement, among those who voted with the majority.

This is in fact a great question, and I feel perfectly satisfied with the President's right to exercise the power, either by the Constitution or the authority of an act. The arguments in favor of the former fall short of full proof, but in my mind they greatly preponderate.

You will say that I have expressed my sentiments with some moderation. You will be deceived, for my whole heart has been engaged in this debate. Indeed it has ached. It has kept me agitated, and in no small degree unhappy. I am commonly opposed to those who modestly assume the rank of champions of liberty, and make a very patriotic noise about the people. It is the stale artifice which has duped the world a thousand times, and yet, though detected, it is still successful. I love liberty as well as anybody. I am proud of it, as the true title of our people to distinction above others; but so are others, for they have an interest and a pride in the same thing. But I would guard it by making the laws strong enough to protect it. In this debate a stroke was aimed at the vitals of the government, perhaps with the best intentions, but I have no doubt of the tendency to a true aristocracy.

Wednesday Evening, June 25

I have received yours, per post, and thank you for it. I am hurrying this to get it in before the mail closes. We have had the treasury bill before us to-day-- made some progress. A puerile debate arose, whether the Secretary of the Treasury should be allowed to exhibit his reports and statements to the legislature. The champions of liberty drew their swords, talked blank verse about treasury influence, a ministry, violation of the privileges of the House by giving him a hearing from time to time. They persevered so long and so furiously, that they lost all strength, and were left in a very small minority. The clause, permitting this liberty, passed.

New York, June 21, 1789

Dear Sir

The last favor for which I am to thank you is of June 9th. For some time past I have been obliged to content myself with inclosing you the newspapers. In general they give, tho' frequently erroneous and sometimes perverted, yet on the whole, fuller accounts of what is going forward than could be put into a letter. The papers now covered contain a sketch of a very interesting discussion which consumed great part of the past week. The Constitution has omitted to declare expressly by what authority removals from office are to be made. Out of this silence four constructive doctrines have arisen 1. that the power of removal may be disposed of by the Legislative discretion. To this it is objected that the Legislature might then confer it on themselves, or even on the House of Reps. which could not possibly have been intended by the Constitution. 2. that the power of removal can only be exercised in the mode of impeachment. To this the objection is that it would make officers of every description hold their places during good behavior, which could have still less been intended. 3. that the power of removal is incident to the power of appointment. To this the objections are that it would require the constant Session of the Senate, that it extends the mixture of Legislative & Executive power, that it destroys the responsibility of the President, by enabling a subordinate Executive officer to intrench himself behind a party in the Senate, and destroys the utility of the Senate in their legislative and Judicial characters, by involving them too much in the heats and cabals inseparable from questions of a personal nature; in fine that it transfers the trust in fact from the President who being at all times impeachable as well as every 4th. year eligible by the people at large, may be deemed the most responsible member of the Goverment, to the Senate who from the nature of that institution, is and was meant after the Judiciary & in some respects witht. that exception to be the most unresponsible branch of the Government. 4 that the Executive power being in general terms vested in the President, all power of an Executive nature, not particularly taken away must belong to that department, that the power of appointment only being expressly taken away, the power of Removal, so far as it is of an Executive nature must be reserved. In support of this construction it is urged that exceptions to general positions are to be taken strictly, and that the axiom relating to the separation of the Legislative & Executive functions ought to be favored. To this are objected the principle on which the 3d. construction is founded, & the danger of creating too much influence in the Executive Magistrate.

The last opinion has prevailed, but is subject to various modifications, by the power of the Legislature to limit the duration of laws creating offices, or the duration of the appointments for filling them, and by the power over the salaries and appropriations. In truth the Legislative power is of such a nature that it scarcely can be restrained either by the Constitution or by itself. And if the federal Government should lose its proper equilibrium within itself, I am persuaded that the effect will proceed from the Encroachments of the Legislative department. If the possibility of encroachments on the part of the Ex. or the Senate were to be compared, I should pronounce the danger to lie rather in the latter than the former. The mixture of Legislative Executive & Judiciary authorities lodged in that body, justifies such an inference; At the same [time] I am fully in the opinion, that the numerous and immediate representatives of the people, composing the other House, will decidedly predominate in the Government.

New York, June 18, 1789

Sir,

By Col. Delaney I have the Honour to transmit You a Sett of the Minutes of the House of Representatives, as far as they are at present printed, and if you will be at the Trouble of having them filed I will transmit the preceeding Sheets as fast as they come from the press. I also inclose the Bill to establish the judicial Courts of the U. States as the same was reported to the Senate by a Comittee appointed for that purpose. A considerable Time I presume will elapse before the same is passed in the Senate & transmitted to our House, If your Time will permit to favour me with your Observations thereon you will lay me under particular Obligations. We have these two Days past had a very important and interesting Debate on a Motion to strike out the Words: "to be removeable by the president," in the bill for establ[ish]ing the Department of foreign Affairs. The Question will probably be decided this Day, and I sincerely wish & hope the words may not be struck out, as without them I should consider the Act very imperfect indeed. The Anti's now begin to discover themselves, and they are on this Occasion bringing their whole force to a point, I think I see an antifederal Monster growing, which if it should gain Strength will I fear interrupt the Harmony with which we have hitherto proceeded. I have the Honr. to be with much Esteem

Sir
Your most obedt.
humble Servant

Fredk. A. Muhlenberg

June 19, 1789

Since Tuesday we have been engaged in Considering a Clause of a Bill for establishing the Department of Secretary for Foreign Affairs-- to wit "To be removeable from office by the President of the United States."

There has been much Debate and as my Mind has made been made up for two Days I take this Opportunity [lined out] when Gentlemen are repeating what has been said over and over again, to write to you and shall give you the Determination as soon as the Question is put [. . .]

The Question was put upon the Clause above referred at 2 OClock P.M. and carried by 30 agst. 20 that the Clause shall stand-- this was a very cardinal Point--upon which the Happiness or Misery of this Country much depends.

The Responsibility of the President is much established and tho' the Senate may have a Negative upon the Persons he may nominate it yet of from their Cabals proper Men cannot be brought forward--he will have it in his Power to remove such improper Persons as soon as he discovers their unfitness-- The Arguments have been very lengthy-- you will find most of them in the News-papers from Philada. next week. I shall say no more at present but conclude with my most respectful Compliments to Mrs. Yeates Miss Molly of the Family and Complm. to Genl. Hand and his Family and other inquiring Friends.

June 18, 1789

To this knotty business has just succeeded another-- It has for three days past been maintained by Gerry &c. that in the removal of officers the president has constitutionally but a divided power-- this position tending to the utter subversion of the executive has been combated with the utmost force of Madison and Ames, yet they still hold out against eloquence and reason and have asked another day--. I think I see however a clear majority against them.

June 15, 1789

We are to day to go on the business of departments. & the bills being ready there will not be much difficulty in Getting them thru the treasury, being the Most Important Engages, the public attention most I mean as to the persons who are to execute it I suspect extreamly there will not be a Pensylvanian in it-- a Secy. or Minister, a Comptroller & Auditor--are the principles-- will have extensive ^ Dutys ^ and Important dutys and ought to be men of Superior Capacity in their different lines-- these first appointments will not only give a tone to the business-- but even a Complexion to the Governmt-- I hope a Good one tho I Acknowledge the difficulty of Getting men in all respects fit is Great.

New York, June 14, 1789

You gave us all such a scolding in your last letters for not writing, that I shall write now constantly, merely through fear. I have nothing to write but politicks, and there is enough of that for every day in the week, the circle of our friends does not furnish any thing to my recollection worth communicating, which I have not told you before. We have made but one law yet, prescribing oaths agreeably to 6th art. of constitution. The impost law has passed our house and was yesterday returned from the senate with many alterations. We have bills on the principal executive departments, treasury & c. now before us. We shall abolish board of treasury, and try a minister in that department again; boards are but little better than shingles in such work.

We have also in the works a bill containing the machinery for the collection of the duties laid in the impost law. A heavy piece of work. The senate have before them a bill on the judiciary department, in my opinion admirably contrived, my chum Ellsworth has been at work at it night and day these three months. A few days since, Madison brought before us propositions of amendment, agreeably to his promise to his constituents. Such as he supposed woud tranquillize the minds of honest opponents without injuring the system. viz. "That what is not given is reserved, that liberty of the press & trial by jury shall remain inviolable, that the representation shall never be less than one for every 30,000 & c." ordered to lie on the table. We are too busy at present in cutting way at the whole cloth, to stop to do any body's patching. There is no such thing as antifederalism heard of. R.I. and N.C. had local reasons for their conduct, and will come right before long. Montezuma feels well, has two levees a week, and now and then a small circle without form to dine with him. Madame, Lear & Lewis are with him. I send this via Falmouth, in ten days by Bunyan you shall have a packet of news papers. God bless you.

Paris, June 3, 1789

Sir,

—After you quitted us yesterday evening, we continued our conversation (Monsr. de la Fayette, Mr. Short & myself) on the subject of the difficulties which environ you. The desirable object being to secure the good which the King has offered & to avoid the ill which seems to threaten, an idea was suggested, which appearing to make an impression on Monsr. de la Fayette, I was encouraged to pursue it on my return to Paris, to put it into form, & now to send it to you & him. It is this, that the King, in a seance royale should come forward with a Charter of Rights in his hand, to be signed by himself & by every member of the three orders. This charter to contain the five great points which the Resultat of December offered on the part of the King, the abolition of pecuniary privileges offered by the privileged orders, & the adoption of the National debt and a grant of the sum of money asked from the nation. This last will be a cheap price for the preceding articles, and let the same act declare your immediate separation till the next anniversary meeting. You will carry back to your constituents more good than ever was effected before without violence, and you will stop exactly at the point where violence would otherwise begin. Time will be gained, the public mind will continue to ripen & to be informed, a basis of support may be prepared with the people themselves, and expedients occur for gaining still something further at your next meeting, & for stopping again at the point of force. I have ventured to send to yourself & Monsieur de la Fayette a sketch of my ideas of what this act might contain without endangering any dispute. But it is offered merely as a canvas for you to work on, if it be fit to work on at all. I know too little of the subject, & you know too much of it to justify me in offering anything but a hint. I have done it too in a hurry: insomuch that since committing it to writing it occurs to me that the 5th. article may give alarm, that it is in a good degree included in the 4th., and is therefore useless. But after all what excuse can I make, Sir, for this presumption. I have none but an unmeasurable love for your nation and a painful anxiety lest Despotism, after an unaccepted offer to bind it’s own hands, should seize you again with tenfold fury. Permit me to add to these very sincere assurances of the sentiments of esteem & respect with which I have the honor to be, Sir, Your most obedt. & most humble servt.

A Charter of Rights, solemnly established by the King and Nation

1. The States General shall assemble, uncalled, on the first day of November, annually, and shall remain together so long as they shall see cause. They shall regulate their own elections and proceedings, and until they shall ordain otherwise, their elections shall be in the forms observed in the present year, and shall be triennial.

2. The States General alone shall levy money on the nation, and shall appropriate it.

3. Laws shall be made by the States General only, with the consent of the King.

4. No person shall be restrained of his liberty, but by regular process from a court of justice, authorized by a general law. (Except that a Noble may be imprisoned by order of a court of justice, on the prayer of twelve of his nearest relations.) On complaint of an unlawful imprisonment, to any judge whatever, he shall have the prisoner immediately brought before him, and shall discharge him, if his imprisonment be unlawful. The officer in whose custody the prisoner is, shall obey the orders of the judge; and both judge and officer shall be responsible, civilly and criminally, for a failure of duty herein.

5. The military shall be subordinate to the civil authority.

6. Printers shall be liable to legal prosecution for printing and publishing false facts, injurious to the party prosecuting; but they shall be under no other restraint.

7. All pecuniary privileges and exemptions, enjoyed by any description of persons, are abolished.

8. All debts already contracted by the King, are hereby made the debts of the nation; and the faith thereof is pledged for their payment in due time.

9. Eighty millions of livres are now granted to the King, to be raised by loan, and reimbursed by the nation; and the taxes heretofore paid, shall continue to be paid to the end of the present year, and no longer.

10. The States General shall now separate, and meet again on the 1st day of November next.

Done, on behalf of the whole nation, by the King and their representatives in the States General, at Versailles, this — day of June, 1789.

Signed by the King, and by every member individually, and in his presence.

(Source: http://oll.libertyfund.org/)

New York, May 31, 1789

I have been favored with yours of the 19th. instant and thank you for the answer to Mr. St. John's inquiries. The apprehensions of Mrs. Randolph give me unfeigned concern, but I indulge strong hopes that they proceed from an imaginary cause. There are so many symptoms which mimic the cancerous that it would be wrong to suffer appearances to prevail against the favorable chances. At the same time it is impossible to disapprove of the forecast with which the occasion inspires you.

Our business here goes on very slowly, though in a Spirit of moderation and accomodation which is so far flattering. The bill for regulating the quantum of duties is not yet come back from the Senate. Some alterations will be made, but none that affect the substance of the plan, unless it be the abolition of a small favor to the Nations in alliance with us copied from the laws of Virginia. One of our Senators whose ideas on another point excite animadversions among his constituents seems not to consult their sentiments on this. I think myself that it is impolitic, in every view that can be taken of the subject, to put G. Britain at once on the footing of a most favored nation. The bill for collecting the duties is now before the H. of Reps. and I fear will not be very quickly despatched. It has passed thro' several hands legal as well as mercantile, and notwithstanding is in a crude state. It might certainly have been put into a better; though in every step the difficulties arising from novelty are severely experienced, and are an ample as well as just source of apology. Scarcely a day passes without some striking evidence of the delays and perplexities springing merely from the want of precedents. Time will be a full remedy for this evil; and will I am persuaded, evince a greater facility in legislating uniformly for all the States than has been supposed by some of the best friends of the Union.

Among other subjects on the anvil is the arrangements of the subordinate Executive departments. A Unity in each has been resolved on, and an amenability to the President alone, as well as to the Senate by way of impeachment. Perhaps it would not be very consistent with the Constitution to require the concurrence of the Senate in removals. The Executive power seems to be vested in the President alone, except so far as it is qualified by an express [associa]tion of the Senate in appointments, in like manner as the Legislative is vested in Congress, under the exception in favor of the President's qualified negative. Independently of his consideration I think it best to give the Senate as little agency as possible in Executive matters, and to make the President as responsible as possible in them. Were the heads of departments dependent on the Senate, a faction in this branch might support them agst. the President, distract the Executive department, and obstruct the public business. The danger of undue power in the President from such a regulation is not to me formidable. I see, and politically feel that that will be the weak branch of the Government. With a full power of removal, the President will be more likely to spare unworthy [lined out] officers, thro' fear, than to displace [typed from PJM from here] the meritorious thro caprice or passion. A disgusted man of influence would immediately form a party agst. the administration-- endanger his reelection-- and at least go into one of the Houses and torment him with opposition.

I can not close this without a disagreeable recollection of the date of my last. I am most negligent towards my best friends perhaps because I have most confidence in their forgiveness. I will at least in future inclose the newspapers when I can do no more. I never had less time that I could truly call my own than at present, of which I hope you will consider my irregular correspondence as the fullest proof.