The Founders' Blog

New York, August 9, 1789

My Dr. Sir

I feel myself much indebted to you for your observations on the Judicial Bill which have arrived in good time for me to avail myself of them-- they in general coincide with my sentiments & I shall use my endeavours to promote the alterations you have suggested.

My time is so much employed & I have so many Letters to answer that I am deprived of the pleasure of answering your's fully & must defer it to another opportunity.

Some of your objections have been in some measure obviated by the Senate who have made considerable alterations in the Bill as you must have observed by the Bill I sent you some weeks ago, as it passed the Senate. It has been the order of the day a fortnight past with us, but as we have had various other business we were desirous of terminating before we entered on this, we have postponed it from day to day & probably shall not go upon it for another week.

The Committee on Amendmts. have reported some, which are thought inoffensive to the federalists & may do some good on the other side; N. Cara. only wants some pretext to come into the Union, & we may afford that pretext by recommending a few amendmts.

There appears to be a disposition in our house to agree to some, which will more effectually secure private rights, without affecting the structure of the Govt. I am sorry our opinions differ so widely on the question of removability: had I not formed my opinions mine on very mature reflection, I should have had much reason to waver after reading your observations: your experience in politics & the unbiased state of your Judgment, not warped by the warmth of debate as we were, [lined out] enable you to form a proper opinion upon the Subject: I am pleased however to find that your arguments go altogether upon expediency & not upon the constitutional right: my desire to guard the Constitution from the dangers of legislative constructions, (which may hereafter be productive of considerable injury to our State, whose representation in point of numbers is weak & unequal to that of any other part of the Union) animated me with a peculiar warmth of opposition. There are men of ingenuity in our house, whose tendency to establish a monarchical govt. & whose abilities to promote it would go great lengths in altering the constitutn. essentially were they allowed to give constructive powers to the Executive branch of the Govt. They acknowledge that the power in question is not explicitly given to the Presidt. but they contend that, as it is an Executive power, he must have it of course. It is not difficult to foresee to what this implication may hereafter tend, as there are several powers of an Executive nature not mentioned in the Constitution & not given to any branch, which every one will admit the Presidt. ought not to possess. Mr. Madison is a great friend to a strong Govt.-- his great abilities will always give him much weight with the administration-- I beleive he now is much in the confidence of the President & he will hereafter stand a chance of being President himself, in the mean time, he will be a leading man in the administration Cabinet Council. his mildness of character & a certain timidity which accompanies his political conduct render him unfriendly to a republican govt.-- The Massachusetts members were divided-- but Ames & Sedgwick who expect soon to see Adams Presidt. & beleive they will then be prime ministers exerted themselves to carry the question: by their influence, Mr. Dalton, in the Senate, was brought over & made the numbers equal, & the Vice President gave the casting Vote. The influence the great body of the people in Massachts. have in their state govt. & the late insurrection of Shays co-operate to make those Gentmen. great favorers of monarchy: such being the state of things, it is a question of considerable importance whether the grant of such a power will promote the prosperity of our State: I am inclined to think not. Should Adams obtain the Presidency ( & I dare say he will in a few years,) such is the infatuation of the New Engd. States in his favor, that I suspect he will have it for life: His ambition is considerable & his partiality to those States no less so. What chance then will a Southern man have of being appointed to an Office? He will nominate his own friends & should the Senate reject them, & compel him to nominate a person disagreable to himself, he will dismiss the officer so appointed on the first Vacancy recess of the Senate & supply the Vacancy himself; besides the Senate will be very seldom be disposed to reject any nomination made by the President, who having the thus the sole power, as it were of appointmt. to all Offices & the sole power of dismission, will be enabled to establish such a System of influence that his responsibility will be a mere shadow. All the great Officers of govt. will be his dependants, open-mouthed on all occasions agst. the Senate, should they ever pretend to differ with the Presidt. on any constitl. point, clamorous agst. any member of the other house, who shall presume to thwart the Presidt. him in any design. These Officers & their friends from one end of the Continent to the other will form a Phalanx, dangerous to any Competitor who may have the folly to be a Candidate for the Presidency; As they would very probably be all dismissed from office to make way for the favourites & creatures of the Successor, their interest would prompt them to use every stratagem to procure the re-election of their Patron & Creator. Every engine would be set to work-- abuse of the Competitor-- panegyrick of the Gentleman in office, bribery, menaces & cabals would all be employed & would undoubtedly succeed-- Every Collector Naval Officer & Surveyor from New H. to Georgia, with all their relations & friends will be interested in his re-election.

Contemplate the Subject in another point of view: It is generally thought that another President will never be elected, by Electors, because it is supposed that no man in Ama. (except our Presidt.) will unite the suffrages of a majority of the Electors: in that case the H. of Reps. are to make the Choice. The New Engd. States united will always carry their point-- the Southn. states will stand no chance: The Cabal in the H. of Reps. will be interested in supporting the President of their appointmt.-- this is natural-- we are ashamed to acknowledge the injudiciousness of our choice & therefore, right or wrong, the Party who have brot. abut. the Election will on all occasions form a strong phalanx in the H. of R. in suppt. of the President-- their friends will in return receive all the best Offices under the Govt.-- it will be always an easy thing to remove the present Incumbents-- calumny-- detraction-- whisperings will be successful-- the Presidt. will dismiss, & the people will take it for granted, all is right-- but admitting that they are dissatisfied-- what can be done-- impeach the President? for what? for exercising a constitutional prerogative-- that would be idle indeed. This combination being established between this Monarch & his Treasy. bench, the next thing wod. be to cry down the Senate-- alarm the People about Aristocracy, quote the Examples of Denmark & Sweden. If the Senate don't crouch to the President-- all his officers will set themselves to work to undermine their it's authority & under them it despicable-- if the Senate it is opposed to the H. of Reps. the Treasury Bench will reprobate it for thwarting that house which is the immediate representative of the People-- it will be repeated (for it has already been said in Congress) that the H. of Rep. & the Presidt. are more nearly related to the People than the Senate-- that the Senate are an Aristocratic body, their doors shut, voting for Officers in the dark mode of ballot-- that there is no responsibility among them-- that they don't represent the People but the States-- that the great danger is to be apprehended from that quarter & not from the President, who is the Man of the People (shall we say so of Adams?) that they will generally be the opulent men of each State & are therefore to be dreaded. Thus will that useful body be abhorred by the People & lose all its weight in the Govt.-- thus will the Constitl. barrier against the tyrannical incroachmts. of the Chief Magistrate on the one hand & the intemperate proceedings of the popular branch on the other be pulled down & annihilated, & thus, finally will the whole powers of Govt. be absorbed by the Presidt. & his pretorian Cohort in the H. of Repress. You will say all this is supposition-- true-- let us agree then that in respect to expediency, much may be said on both sides-- & proceed to examine the subject on its constitutional ground.

It is very evident that the federal constitution is a compilation of the State Constitutions: there are few clauses in it, particularly those which relate to the Structure of the several branches of the Govt. which are not copied nearly verbatim from the State Constitutns. The mode of appointmt. to offices by the Presidt. with the advice of the Senate is copied from a great number of the Constitns. where the Govr. & Privy Council or Council of appointmt. have this power. the Impeachment by the H. of Reps. & the trial of Impeachmts. by the Senate are also imitated from the Govts. of almost all the States-- you will admit those that the rule of construction from analogy will here strongly apply-- the federal Constitn. being then silent as to removability ([lined out] unless by Impeachmt.) the question occurs how are officers to be removed? you say, by the President-- I then ask, can the Governor of any one State in the union remove an officer at pleasure? he certainly cannot. In one or two states, the Governor & Council appoint another officer, which operates as a supersedure (if I may so call it) of the person in office, but the Govr. alone, tho he can in some instances suspend, can in no one instance remove. In some of the States, an officer can be displaced only by impeachmt. in others by address of the Legislature, & again in others by the Govr. & executive Council. Examine the new Constitn. of Georgia, every clause of which relating to this question, is copied from the federal Constitution & tell me whether you think the Govr. of Georgia has this immense Power: I puzzled Mr. Baldwin not a little by asking him this question, immedly. after he had made a long oration to prove the constituty. of this power in the President. Can there be two modes of construction, one for the Const. of a State & the other for the Constit. of the U. S. when the same words & sentences are employed? I think not: Mr. Baldwin was clearly of opinion that the Govr. of Georgia has not this power.

But you will ask whether the Constitn. has vested this power in the Senate joined with the Presidt.-- the Implication is certainly stronger in favor of the Senate, because they appoint, & it seems reasonable that they shod. remove, for the same judgment is requisite to determine whether one man should be removd. from an office as to determine whether another is fit to be appointed to it. Besides, the Senate, consisting of members from every State, may be deemed more interested in the continuing in office a proper man, than the President; & as the officer can be a countryman but of two of the Senators there is less reason to apprehend an improper spirit of favoritism & partiality in the Senate-- than in the President. the Senate may also be supposed to contain more general knowledge of characters than the Presidt.-- they come from all parts of the Union, mix in society & know the public sentiments, whereas the Presidt. lives recluse & converses only with a few favorites, from whom he will generally derive all his information of character. Again, as the Presidt. & Senate jointly appoint, it appears that if these be any other mode of removal than by impeachmt., the proper mode shod. be to remove the officer by the appointmt. of another, which must be by the concurrence of the Senate. Here I will admit that some inconvene. might result from this doctrine, & therefore I gave in the house a very different interpretation to the Constitution in the House from those who contended on the one hand that the power of [space in original text]--tion belonged to the Presdt. alone & those who insisted that it was in the Presd. & Senate jointly: and altho my exposition was only supported by myself & Mr. Page, yet the friends to the former opinion confessed that mine was more consistent & more constitutional than the latter. Without adverting to expediency, but confining myself strictly to the Constitution, I contended that Officers could only be removed by Impeachment: I supported my opinion on these grounds: 1st. the Constit. says, "all officers shall be removed by impeachmt." & in no part of the Constitn. does it say that they shall be removed in any other mode expressed circius est exclusio alterius. 2dly. this is conformable to the State Constn. for no officer can be displaced in any of the States, unless by Impeachmt. or by virtue of a power expressly given to the Executive Council or the Legislature, as in Pensylva. & Maryland; in the latter the Treasurers hold their places during the pleasure of the Assembly. 3dly The mode of removal must be uniform; if it be given to the Presidt. alone in one case it must be likewise given in every other, & the Convention could never have had it in contempln. that the Treasury should be so much under the immediate influence of the President as it wod. be if the Officers of that Departmt. held their places during his pleasure. 4ly. the Enumeration of the Powers of the Presidt. in the Constitn. is a direct & strong implication that he shod. have no other powers than those enumerated, because, if vesting him with the Executive power was of itself sufficient to convey all executive powers, the enumern. wod. be abursd the same observation applys to the Senate. Had this power been incontemplat. how easy it wod. it have been to have added, after declaring that the Presidt. shod. nominate & by & with the advice & consent of the Senate appoint, these words, " & remove, when necessary," all officers & ca. or after saying that the President should "commission all officers" add, "during his pleasure:" from the comparison with the State Constitutions & the omission of any such power, I am perfectly convinced either that there were in the Convention men who wished this power shod. be vested in the President, but were afraid to give it explicitly, least the people shod. reject the Constitution & therefore left it to be exercised by implication, or that it was never [lined out] in the contemplation of the Convention: I have indeed heard it said that it was there understood that the Presidt. & Senate would appoint a new officer & thus supersede the old one: Aug. 10th.-- it is very certain that the matter power been agitated in Convention & there understood to be in the Presidt. alone, or shod. have been told it in the debate. For these & other reasons which I have not leisure to detail I am of opinion that constituy. an officer can only be removed by Impeachmt.-- to this doctrine it was answered that the most alarming inconveniencies wod. result from such a doctrine, because even a tide-waiter wod.only be removed only by Impeachmt., wod. be absurd, & that it wod. be dangerous to liberty to give to the officers of govt. so durable a tenure as that of good behavr. & that moreover it was agst. the Constitn. which only contemplated such a tenure as applicable to the Judges. I rescued my principle from these defects by stating: 1st. that my doctrine wod. not extend to a tide-waiter, because Congress wod. by Law vest the appointmt. & conseqy. the removal of all inferior Officers in the Presidt. alone. 2. that it was easy to limit the duration of the great Officers by making their appointmt. biennial or for a longer period as is done in all the States which the Congress might do, when they established the Offices. 3d. that the Constitun. by declaring that the Judges shod. hold their places during good behavr. intended to prohibit Congress when it instituted the Judicial Departmt. from making their appointmts. limited, as they are in several of the States, for to a term of years & manifestly shewed that the Executive officers might be limited: my conclusion therefore was that with respect to all inferior officers a Law pass vesting the appointmt. & removal solely in the Presidt. & that the great & principal Officers of Govt. shod. be appointed for a limited time, during which they can shod. only be removed by impeachmt.-- If you read the constitutn. with attention & compare it with that of the States, you will be of opinion with me that however expediency may dictate another principle, this is the constitl. line of proceeding. I observed some time ago that our State shod. be extremely cautious how any innovation is made in the Constitn.-- at present we know what govt. we live under & the Extent of the Sacrifice made-- our State Convn. perused the federal constitn. & concurred in it, as it stood. While it remains, unaltered, we may not have no reason to apprehend any incroachments on our state-rights-- but if on the other hand, it is in the power of a few ingenious men & able orators to new-model the powers of the govt. by construction & implication & give it a different shape from the one it had when we adopted it, there's no saying to what lengths these alterations may be gradually carried in time: I observed that our State is weak in the Union-- it certainly is-- we have no state to support our peculiar rights, particuy. that of holding Slavery, but Georgia: She will be generally represented by men of moderate abilities-- indeed I fear the smallness of the pay will not entice our best men to make the necessary sacrifices & come to Congress: No. Cara. voted with the other states agst. us in Convention: Virga. is our greatest enemy. the other States are all agst. us; but while the Constitn. remains unaltered, they can't touch our negroes for 20 years & perhaps not constitutionally after that time; for I shall support the Amendmts. proposed to the Constitn. any exception to the powers of Congress shall not be so construed as to give it any powers not expressly given, & the enumeration of certain rights shall not be so construed as to deny others retained by the people-- & the powers not delegated by this Constn. nor prohibited by it to the States, are reserved to the States respectively; if these amendts. are adopted, they will go a great way in preventing Congress from interfering with our negroes after 20 years or prohibiting the importation of them. Otherwise, they may even within the 20 years by a strained construction of some power embarass us very much. I had this in contemplation not a little, in my opposition to the Legislature's giving judicial constructions on the Constitutn.

I have read your observations on the Judicial with attention & having somewhat more time than I thought, I shod. have had at the outset of this Letter will briefly acquaint you what impressions they have made on my mind. 1st. Objection to the District Judge holding special Courts. Ansr. occasions may occur when they may be very necessary-- the Seizure of goods-- a Ship-- which it may be proper & expedient to condemn forthwith-- a crime committed on the High Seas-- & the witnesses, who are Sailors, about to depart-- you recollect that the District Court is a Cot. of Admty.-- The Judge will not hold them unnecessarily on accot. of the additl. trouble-- Great inconvs. might ensue, if he had not that power-- if it is found oppressive, the Legislate. can remedy it. The District Court has no material Jurisdiction beyond maritime causes & causes of Seizure; therefe. the dangers cannot result which you apprehend. nor can there be apprehensions from the Judge's power to remove hold the Court where he thinks proper for the above reasons-- On the mode of adjourning the Cot. where the District Judge does not attend, I entirely agree with you & had made a note similar to your's before I saw your observation.

The Senate have altered the Clause respecting Quakers, [confor]mably to your Sentiments.

The Trial of fact shall be by Jury.

As the Bill has been alter'd by the Senate, it stands now "the trial of issues in fact" shall be & ca. In general the Law as well as the fact shod. be left to the Jury-- but when we consider that the causes triable in these Cots. will generally turn on the Laws of nations, the construction of Treaties, on the clashing rights of different states, on the interests of foreigners, agst. whom that order of people of whom our Juries are formed is generally prejudiced, on the interests of citizens of another state than that in which the cause is tried, in which case the Jury will be partial to their own immediate fellow-citizens & perhaps acquaintances, a question may arise (& I confess my opinion is not settled) how far the Senate have not been judicious in leaving the Fact alone to the Jury, more especially as there is no appeal of fact to the Supreme Cot. but only of Law.

Retrospect as to Contracts. I have sometime since sounded the [space in original text]Members on this point, but they generally disapprove of the restriction: less danger will result from a general operation of the Law than might have been apprehended; the establishmt. of Circuit Cots. will facilitate the trial of causes in the States where the debts may be due & by Juries of those states; & there is no appeal of fact-- the Sum for which Writs of Error will lie to [torn] Cot. may be a large one.

If the Defendt. claims under a Grant of another State.

Your objection is that the Plt. shod. have the same right: The alteration has been made in the Senate, conforme. to your opinion.

Suits agst. Ambassadors-- [space in original text]{I agree with you in your observns. on these 2 points.

The United States not to pay costs--

Where is drawn in question the Validity of a Treaty & ca. you think the appeal shod. be reciprocal-- I have seen some observations from Mr. Pendleton of Virga. on the Jud. Bill & he makes precisely the same objection. The reason on which the Clause is grounded is that a citizen can't complain if his own State Court decides agst. him; that this Bill does not put him in that respect in a worse plight than he was before: on the other hand the Clause is absolutely necessary for the preservation of the federal governmt.-- there is much weight in your observns. & I am not clear but you are right: my opinion is not fixed.

Mr. Elsworth who was principally concerned in drawing the Bill is the Judge of the State of Connecticut of much reputation for legal knowledge: he is a man of remarkable clearness of reasoning & generally esteemed a man person of abilities. I met him last night & took notice of some of your objections which he endeavoured to refute. He observed that the convention had in view the condition of foreigners when they framed the Judicial of the U. States. The Citizens were already protected by [torn] Judges & Courts, but foreigners were not. The Laws of nations & Treaties were too much disregarded in the several States-- Juries were too apt to be biased agst. them, in favor of their own citizens & acquaintances: it was therefore necessary to have general Courts for causes in which foreigners were parties or citizens of difft. States; hence arises this partiality which offends you: perhaps it may be card. too far.

The mode of drawing Jurors shod. be according to the customs & Laws of the sevl. states: Mr. Elsworth seemed to have no objections to that, but remarked that a very ignorant Jury might be drawn by Ballot.

Special Jury in appeals to the Supreme Court: There is no appeal of fact to the Sup. Cot.

The Return Days ought to be fixed in the Act: I will mention this-- I have not much considered this point.

I shall do every thing to serve Capt. Hall, when an opportunity offers. at present there is nothing that will suit him.

I sent you the Judicial Bill as it passed the Senate-- if you have leisure, send me your opinions of it, which may arrive before we pass it.

I dined in company with Henry yesterday-- he looks [well & ] likes his Situation much.

[This will be] delivered you by Mr. John Marsdan Pintard, who has a Law Suit in Charleston-- Mr. Boudinot, his uncle has requested me to recommend him to a Lawyer of Eminence; I therefore take this mode of introducing him to you: his is a gentleman of good connextions in this City.

I have much more to say, but no more time-- Mrs. Smith joins me in best regards to your good Lady & yourself & I am particularly

My dr. Sir
your's with sincty.