AN ACT TO ESTABLISH AN EXECUTIVE DEPARTMENT, TO BE DENOMINATED THE DEPARTMENT OF WAR
[I] BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA, IN CONGRESS ASSEMBLED, that there shall be an executive department, to be denominated, The department of War, and that there shall be a principal Officer therein, to be called the Secretary for the department of War, who shall perform and execute such duties as shall from time to time be enjoined in, or intrusted to him, by the President of the United States, agreeably to the Constitution, relative to Military Commissions, or to the land or naval forces, ship, or warlike stores of the United States, or to such other matters respecting Military or Naval Affairs, as the President of the United States shall assign to the said department, or relative to the granting of lands to persons entitled thereto, for Military Services rendered to the United States, or relative to Indian Affairs: And furthermore, that the said principal Officer, shall conduct the business of the said department, in such matter as the President of the United States shall from time to time, order or instruct.
[2] AND BE IT FURTHER ENACTED that there shall be in the said department, an inferior officer, to be appointed by the said principal Officer, to be employed therein as he shall deem proper, and to be called the Chief Clerk in the department of War, and who, whenever the said principal Officer shall be removed from Office by the President of the United States, or in any other case of vacancy, shall during such vacancy, have the charge and custody of all records, books, and papers, appertaining to the said department.
[3] AND BE IT FURTHER ENACTED, that the said principal Officer, and every other person to be appointed or employed in the said department, shall before he enters on the execution of his Office or employment, take an oath or afffirmation, well and faithfully to execute the trust committed to him.
[4] AND BE IT FURTHER ENACTED, that the Secretary for the department of War to be appointed in consequence of this Act, shall forthwith after his [Page 2029] appointment, be entitled to have the custody and charge of all records, books and papers, in the Office of Secretary for the department of War, heretofore established by the United States in Congress assembled.
FREDERICK AUGUSTUS MUHLENBERG
Speaker of the House of Representatives
JOHN ADAMS
Vice President of the United States, and
President of the Senate
Approved August the Seventh 1789
GO. WASHINGTON
President of the United States
AN ACT TO ESTABLISH THE TREASURY DEPARTMENT
[1] BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA, IN CONGRESS ASSEMBLED, that there shall be a department of Treasury, in which shall be the following officers, namely; a Secretary of the Treasury to be deemed head of the department, a Comptroller, an Auditor, a Treasurer, a Register, and an Assistant to the Secretary of the Treasury; which assistant shall be appointed by the said Secretary.
[2] AND BE IT FURTHER ENACTED, that it shall be the duty of the Secretary of the Treasury to digest and prepare plans for the improvement and management of the revenue, and for the support of public credit; to prepare and report estimates of the public revenue, and the public expenditures; to superintend the collection of the revenue; to decide on the forms of keeping and stating accounts and making returns, and to grant, under the limitations herein established, or to be hereafter provided, all Warrants for monies to be issued from the Treasury, in pursuance of appropriations by law; to execute such services relative to the sale of the lands belonging to the United States, as may be by law required of him; to make report and give information to either branch of the Legislature, in person or in writing, (as he may be required) respecting all matters refered to him by the Senate or House of Representatives, or which shall appertain to his office; and generally to perform all such services, relative to the finances, as he shall be directed to perform.
[3] AND BE IT FURTHER ENACTED, that it shall be the duty of the Comptroller to superintend the adjustment and preservation of the public accounts; to examine all accounts settled by the Auditor, and certify the ballances arising thereon to the Register; to countersign all warrants drawn by the Secretary of the Treasury, which shall be warranted by law; to report to the Secretary the official forms of all papers to be issued in the different offices for collecting the public revenue, and the manner and form of keeping and stating the accounts of the several persons employed therein; he shall moreover [Page 1976] provide for the regular and punctual payment of all monies which may be collected, and shall direct prosecutions for all delinquencies of officers of the revenue, and for debts that are or shall be due to the United States.
[4] AND BE IT FURTHER ENACTED, that it shall be the duty of the Treasurer, to receive and keep the monies of the United States, and to disburse the same upon Warrants drawn by the Secretary of the Treasury, countersigned by the Comptroller, recorded by the Register, and not otherwise; he shall take receipts for all monies paid by him, and all receipts for monies received by him shall be endorsed upon Warrants, signed by the Secretary of the Treasury, without which warrant so signed, no acknowledgment for money received into the public Treasury shall be valid: and the said Treasurer shall render his accounts to the Comptroller, quarterly, (or oftener if required) and shall transmit a copy thereof, when settled, to the Secretary of the Treasury, he shall moreover on the third day of every Session of Congress, lay before the Senate and House of Representatives fair and accurate copies of all accounts, by him from time rendered to, and settled with the Comptroller as aforesaid, as also a true and perfect account of the State of the Treasury; he shall at all times, submit to the Secretary of the Treasury and the Comptroller, or either of them, the inspection of the monies in his hands, and shall, prior to the entering upon the duties of his office, give bond with sufficient sureties, to be approved by the Secretary of the Treasury and Comptroller, in the sum of One hundred and fifty thousand dollars, payable to the United States, with condition for the faithful performance of the duties of his office, and for the fidelity of the persons to be by him employed, which bond shall be lodged in the office of the Comptroller of the Treasury of the United States.
[5] AND BE IT FURTHER ENACTED, that it shall be the duty of the Auditor, to receive all public accounts, and after examination to certify the ballance, and transmit the accounts, with the vouchers and certificate to the Comptroller for his decision thereon: PROVIDED, that if any person whose account shall be so audited, be dissatisfied therewith, he may within six months, appeal to the Comptroller against such settlement.
[6] AND BE IT FURTHER ENACTED, that it shall be the duty of the Register, to keep all accounts of the receipts and expenditures of the public money, and of all debts due to or from the United States; to receive from the Comptroller, the accounts which shall have been finally adjusted, and to preserve such accounts with their vouchers and certificates; to record all warrants for the receipt or payment of monies at the Treasury, certify the same thereon, and to transmit to the Secretary of the Treasury copies of the certificates of ballances of Accounts adjusted as is herein directed.
[7] AND BE IT FURTHER ENACTED, that whenever the Secretary shall be removed from office by the President of the United States, or in any other case of vacancy in the office of Secretary, the Assistant shall during the vacancy, [Page 1977] have the charge and custody of the records, books, and papers appertaining to the said office.
[8] AND BE IT FURTHER ENACTED, that no person appointed to any office instituted by this Act, shall directly or indirectly be concerned or interested in carrying on the business of Trade or Commerce, or be owner in whole or in part of any Sea Vessel, or purchase by himself, or another in trust for him, any public lands or other public property, or be concerned in the purchase, or disposal, of any public securities of any State, or of the United States, or take or apply to his own use, any emolument or gain for negotiating or transacting any business in the said department other than what shall be allowed by law, and if any person shall offend against any of the prohibitions of this Act, he shall be deemed guilty of a high misdemeanor, and forfeit to the United States the penalty of three thousand dollars, and shall upon conviction be removed from Office, and for ever thereafter incapable of holding any office under the United States: Provided that if any other person than a public prosecutor shall give information of any such offence, upon which a prosecution and conviction shall be had, one half the aforesaid penalty of three thousand dollars, when recovered, shall be for the use of the person giving such information.
FREDERICK AUGUSTUS MUHLENBERG
Speaker of the House of Representatives
JOHN ADAMS
Vice-President of the United States, and
President of the Senate
Approved September the Second 1789
GO. WASHINGTON
President of the United States
August 26, 1789
Attended the Senate the minutes were lengthy but I was surprized to find no notice taken, of my presenting the Draught of Lancaster the letter, and my nomination of the other places in Pennsylvania, altho I had put in Writing, the Whole Matter and given it to the Secretary. When he had read about half way of his Minutes, I rose and called on him to know Why he had not inserted them. he said he was not come to them but seemed much confused. he however got the letter and handed it to the President. to read it and it was read. after this the nomination was read, and Butler opposed their being put on the minutes I however had a Vote for their going on. Mr. Morris was all this While out. he was of the Committee on the Compensation bill. When he came in Otis the Secretary came to him and wispered something to him God forgive me if I heard wrong or apprehended Wrong, but I thought he said Maclay has got that put on the minutes Mr. Morris, went out and staid out untill Senate adjourned leaving his hat & Stick (perhaps he was writing letters in the adjoining room) he called in as the Senate rose and seemed unwilling to leave me in the room with Otis. I went with him to the Door but returned and spoke to Otis. all this is perhaps the Effect of over observation. I however care not. the penal Law was taken up. Elsworth had a String of Amendments for a While he was listened to, but he wraught himself so deep in his niceties and distinctions as to be absolutely incomprehensible he fairly tired the Senate and was laughed at. I think he may be well stiled the Endless Elsworth. I forgot to minute Yesterday that the Treasury bill was taken up. a number of the Senate had recanted again on this Bill, and were against the power of the President's removing, and had amended accordingly. the H. of R. sent us up an d Adherence. and now Mr. Morris proposed to me to leave the House I would neither do this nor change my mind and he was angry. this was before we had the difference on the Compensation Bill. last night there was a meeting of the Pennsylvania delegation. on the Subject of fixing the permanent Residence, there was little of Consequence said. they agreed however mentioned their former agreement to Vote for every place that should be nominated in Pennsylvania. Clymer said some things that savoured more of independence than any of them. Scot declared he would put himself intirely in their hands and move anything that should be agreed on. Mr. Clymer declared for the Potowmac, rather than stay here. I understood him that he thought this politically right. Fitzsimons and the Speaker seemed to second everything that Mr. Morris said. Hartley was for Susquehannah and York Town. But indeed I think the Whole Measure likely to be abortive. They have brought the Matter forward but have no System. {I saw this but did not hazard a single sentiment on the Subject, indeed I could not without implying some kind of Censure. I called this morning and indeavoured to put Mr. Scott on tenable ground in the affair of removal, & left him in a proper way of thinking. at least if he should be defeated, to advance nothing but what is defensible.}
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.
My dear sir
I am favoured with your letters of the 28th & 29th of July: the former I shall communicate to the President previously to the election of Judges, for I sincerely hope Judge [James?] Sullivan will obtain the office of district Judge for Massachusetts. political opinions however good, are generally heretical, if not sanctioned by the voice of a majority: & if bad, thus sanctioned are considered as divine. Mr. Sullivan's politics at this time, accord with the sentiments, as I conceive of the people, & his conduct as a Judge has has, as I have always understood been unexceptionable.
With respect to the establishment of theatres, various opinions are entertained of their good and bad effects, even by vertuous republicans: if they can be so regulated as to instruct us in the knowledge of man, & to discriminate his vertues from his vices & whilst they afford amusement will not excite a spirit of dissipation, it is undoubtedly both wise & politic to admit them: but on the other hand, if they have a tendency to gild vice & promote extravagance, to undermine & eradicate vertue which is the only solid foundation of a free government, & to destroy the habits of oeconomy & industry the true sources of the wealth of a nation, they ought not only to be discountenanc'd but forbidden under the severest penalites. my opinion at present is rather in favour of them, as I concieve they may be properly regulated, but it is an object I have very little at heart & I shall chearfully acquiesce in the decisions of the legislature should the subject be by them considered. in any event your observations on the matter will I am sure be both instructive & entertaining.
I can give you very little information more than you will have obtained from the Gazettes, except that the house yesterday fixed the Salaries of themselves & officers, & that there are some appearances which I confess to you are to me alarming.
We have formed a treasury system, which I did not hesitate to declare in the House appeared to me the most perfect plan I had seen for promoting peculation & speculation in the public funds. at the head of it is to be a secretary with power to superintend all the revenue officers, & a person is proposed to fill this office who has heretofore given it as his opinion, that the affairs of America will never be well conducted without an external influence. this secretary has power to propare money bills before they are orginated by the house, in direct violation as I conceive of the constitution & in debating the Subject, when it was objected that he would have an undue influence in the House Mr. M-d-n who is an Intimate of the candidate for this office de[c]lared he had no fear from that influence but was apprehensive of an influence arising from the ignorance indolence & party veiws of the house, which he was as he was afterwards told told was advocating external influence; for us the decisions of the house must arise from some species of influence & he was averse to the influence of its members he was clearly for an influence arising from some other quarter. consistently with this plan Mr. M-d-n is for keeping the Salaries or allowances of the House Congress low & has urged 5 instead of 6 dollars, altho it is well known Virginia allowed more than 6 dollars when the Congress sat the whole year. a few members are influenced by other considerations, namely the opinions of their constituents, to advocate 5 dollrs., but the house have decided it for 6. the consequence of a low establishmt. for Congress will be this a majority of the members will be either nabobs or indigent men, who will unite in plans to oppress & plunder the people. the constitution requires that the members of Congress should have a compensation for their services; the terms used on this occasion are the same as those used for the executive & judiciary: but whilst these are to have high, for Congress low stipends are nevertheless urged & will probably [blotted out] catch the popular ear. my opinion is that the establishment ought not to be on either extreme but such as to make it reputable for any men in America to accept the offices, if elected thereto, & as will indemnify them from losses by leaving their homes. to defeat this wicked system, & at the same time clear the members opposed to it from contemptible & illiberal suspicions of avarice I brot forward a motion & was seconded & supported by some independent members to strike out all provision for members of the House & let them sustain their own expences, by which means they would be able to act independently for the publick interest & avoid the danger of making our house of representatives a mere executive machine to vote away the property of their constitents without any reason or necessity. those however who had advocated 5 dollars & called the yeas & nays thereon, in which we joined them thot it more prudent to take 6 dollars than give such a small testimony of their patriotism as to accede to my motion, which I should have been sincerely happy to have carryed. what renders this matter more extraordinary is that the members who supported 5 dollars supposed Congress after this Session would not sit longer than 4 months in a year which at 6 dollars a day will amount to 720 dollars for each Senator & member of the house, & on the same day the house granted to their door keeper 750 Dollars a year & to their Secretary of the Senate & clerk of the House 1500 dollars each a year & two dollars a day besides for every day of the Session of Congress which if four months would make the salary of each 1740 dollars a year, who ever supposed that a senator or representative would be so debased as to receive as a compensation for his services less than a doorkeeper & not more than 2/5th of the allowance to a Secretary & clerk? these to me are serious considerations & shew that it is in [lined out] contemplation to govern America as Britain is now governed, by corruption. Mrs. Gerry joins me in sincere respects to Mrs. Mrs. Adams & be assured my dear sir I am ever yours
E. Gerry
Please to communicate what respects the Salaries to Judge Sullivan 8th. I had forgot to mention that I was of the committee & was for 5 dollars (as the Sense of our state) for members of the house, wch. was agreed to with a further allowance for Senators; but the making a different establishment for the Senate gave offence to the house & the commee. then fixed 6 dollars for both.
July 27, 1789
AN ACT FOR ESTABLISHING AN EXECUTIVE DEPARTMENT, TO BE DENOMINATED THE DEPARTMENT OF FOREIGN AFFAIRS
[1] BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA, IN CONGRESS ASSEMBLED, That there shall be an Executive department, to be denominated the department of foreign Affairs: and that there shall be a principal Officer therein, to be called the Secretary for the department of foreign Affairs, who shall perform and execute such duties as shall from time to time be enjoined on, or intrusted to him by the President of the United States, agreeable to the Constitution, relative to correspondences, commissions, or instructions to, or with public Ministers or Consuls from the United States, or to negociations with public Ministers from foreign States or princes, or to Memorials or other applications from foreign public Ministers, or other foreigners, or to such other Matters respecting foreign Affairs, as the President of the United States shall assign to the said department: And furthermore, that the said principal Officer shall conduct the business of the said department in such manner as the President of the United States, shall from time to time Order or instruct.
[2] AND BE IT FURTHER ENACTED, That there shall be in the said department an inferior Officer, to be appointed by the said principal Officer, and to be employed therein as he shall deem proper, and to be called the chief Clerk in the department of foreign Affairs, and who, whenever the said principal Officer shall be removed from Office by the President of the United States, or in any other case of vacancy, shall during such Vacancy, have the charge and custody of all Records, Books, and Papers, appertaining to the said department.
[3] AND BE IT FURTHER ENACTED, That the said principal Officer, and every other person to be appointed or employed in the said department, shall, before he enters on the execution of his Office or employment, take an Oath or Affirmation well and faithfully to execute the trust committed to him.
[4] AND BE IT FURTHER ENACTED, That the Secretary for the department of foreign Affairs, to be appointed in consequence of this Act, shall, forthwith [Page 690] after his Appointment, be entitled to have the Custody and charge of all Records, Books, and Papers in the Office of Secretary for the department of foreign Affairs, heretofore established by the United States in Congress Assembled.
FREDERICK AUGUSTUS MUHLENBERG
Speaker of the House of Representatives
JOHN ADAMS
Vice-President of the United States, and
President of the Senate
GO. WASHINGTON
President of the United States
Approved July Twenty seventh 1789
July 26, 1789
I am infinitely obliged to you for the pains you have taken to explain to me the utility of the Presidents having the power to remove from Office the executive officers of Government without this power in him I do not think the Government can operate well. But I cannot help wishing that the Constitution had been more explicit on this head. I believe the people here will however acquiesce in the Sentiments of your house in this important business. I shall probably in my next have it in my power to be more explicit than I can now be in this matter.
July 20, 1789
congratulate you on one essential point gained which will give a tone to our National Government, I mean the power of removing from Office in the President, you have seen by the papers what a struggle we had in the house on this question, but we had the happiness of a large majority in favour of it, but in the Senate, the struggle was much more important for beside the bugbear of Tyranny it had to encounter, it had the more feeling sensation of what they called a deprivation of their own power to combat; the Senate divided equaly and our worthy Vice President turned the scale, I confess I would not give a groat for the Executive part of the Constitution without such power, if there be evil in Government, responsibility ought to be so center'd in a focus as We know where to find it, &c., inter nos, Mr. Strong and myself were obliged to use some pains with his Brother Senator [Dalton] the morning before the decision to be on the right side, as We knew by counting noses the whole would depend on his becoming a convert-- ;and happyly [lined out] his conversion was effected, as I presume by the weight of Argument.
July 17, 1789
attended at the hall half after 9 O'Clock-- we read and corrected the long Judiciary the Senate Met at the usual time. This same Judiciary was taken up and went over. and Now Mr. Butler rose against it. Mr. Grayson spoke against it, and Mr. Lee was more pointed than any of them. had Mr. Lee joined in my Objections against it at an early period, perhaps we might have now had it, in better form. Mr. Butler offered a Motion, for leave for any Member to enter his dissent on the Minutes. This proved a most lengthy debate, it was 4 O'Clock before it was decided. he lost his Motion tho' I thought it, and right. and now Mr. Lee, Mr. Grayson, Mr. Butler,Mr. Izard Wingate rose for the Yeas and Nays on the Judiciary bill they were given, I was in the negative. I opposed this bill from the beginning. It certainly is a Vile law System, calculated for Expence, and with a design to draw by degrees all law business into the federal Courts. The Constitution is meant to swallow up all the State Constitutions by degrees and this to Swallow by degrees all the State Judiciaries-- This at least is the design some Gentlemen seem driving at. Oh Sweet Candor when wilt thou quit the Cottage, and the lisping infants lip, and shed thy Glory round the Statesman's head. is it inscribed on human fate, that Man must seem grow wicked to seem wise. and must the path of politicks, be for ever incumbered with briars and Thorns--
I had been much pressed to dine with the Speaker in a Company of Pennsylvanians I went there and sat till Six, I am a poor String in a convivial Concert, my lame Knee will neither let me eat nor drink-- I am old and ought to know it, I came away quite tired of the volatile Tattle of the Table, I never had much but now much less taste, for convivial Joy. some of the Company grew very talkative before I left them-- {particularly the Governor of the Western Territory. he must soon sink in the publick Opinion, if he conducts himself as he did this Evening, he was Tediously talkative & dwelt much on the fooleries of scottish antiquity; and what was worse shewed ill nature when he was laughed at.}
July 16, 1789
Attended pretty early this Morning many were however there before Us me. it was all hudling away in small parties our President was very busy indeed. running to every one, he openly attacked Mr. Lee before me on the Subject in debate. and they were even loud on the business I began to Suspect. That the Court party had prevailed, Senate however met and at it they went Mr. Lee began, but I really believe the Altercation tho' not a Violent One, which he had with the president, had hurt him, for he was languid, and much shorter than ever I had heard him on almost any Subject.
Mr. Patterson got up, for a long time you could not know what he would be at, after however he had warmed himself with his own discourse, as the Indians do with their War Song, he said he was for the Clause continuing, he had no sooner said so than he assumed a bolder Tone of Voice. Flew over to England extolled its Government wished in the most unequivocal language, that our President had the same powers, said let Us take a 2d View of England, repeating nearly the same thing, let Us take a 3d View of it said he and he then abused the Parliament for having made themselves first Trennial and lastly Septennial. Speaking of the Constitution he used expressly these Words. speaking of the removing of Officers. There is not a Word of Removability in it. his Argument of course was that the Executive held this Matter of Course-- Mr. Wyngate got up and said something for Striking out. Mr. Read rose, and was swinging on his legs for an Hour, he had to talk a great deal before he could bring himself, to declare against the Clause Motion, but now a most curious Scene opened-- Dalton rose, and said a number of things in the most hesitating, and embarrassed Manner, it was his recantation had just now altered his mind from What had been said by the Honorable Gentleman from Jersey. he was now for the Clause Mr. Izard was so provoked. That he jumped up declared nothing had fell from that Gentleman that possibly could convince any Man-- that Man might pretend so, but the thing was impossible, Mr. Morris's face had reddened for some time he rose hastily. he threw Censure on Mr. Izard declared that the recanting Man behaved like a Man of honor. that Mr. Patterson's Arguments were good and sufficient to convince any man. the Truth however was that every body believed that John Adams was the great Converter, but now Recantation was in fashion. Mr. Basset, recanted, too. tho' he said he had prepared himself on the other side We now saw how it would go. and I could not help admiring the frugality of the Court party in procuring Recantations or Votes, which you please. After all the Arguments were ended & the Votes Question taken the Senate was 10 to 10 and The president with great Joy cryed out it is not a Vote, without giving himself time to declare the division of the House, and give his Vote in Order. Every Man of our side in giving their Sentiments, spoke with great freedom. and seemed willing to avow their Own Opinion in the openest Manner. Not a Man of the others who made any speech to the Merits of the Matter, but went about it and about it, I called this singing the War Song and told him Mr. Morris I would give him every One Who I heard Sing the War Song, or in other Words those who could not avow the Vote they were fully minded to give, untill they had raised Spirits enough, by their own Talk, to enable them to do it. Grayson made a Speech it was not long. But he had in it this remarkable Sentence. "The Matter predicted by Mr. Henry, is now coming to pass, consolidation is the object of the New Government, and the first Object attempt will be to destroy the Senate, as they are the Representatives of the State legislatures."
It has long been a Maxim with me, That no frame of Government Whatever, would secure liberty or equal administration of Justice to a People, unless Virtuous Citizens, were the legislators & Governors. I live not a day, without finding new reason to Subscribe to this Doctrine. What avowed & repeated attempts have I seen to place the President above the powers stipulated for him by the Constitution.
For Striking out
Butler
Izard
Langdon
Johnson
Wyngate
Few
Gun
Grayson
Lee
Maclay
10
Against Striking out
Reed
Basset
Elsworth
Strong
Dalton
Patterson
Elmer
Morris
Henry
Carrol
President
11
{I reply'd to a number of their Arguments, and the Substance of them is on the adjoining Loose Sheet-- } {of All the Members of our House the Conduct of Patterson surprizes me most. he has been characterized to me as a Staunch Revolution Man & Genuine Whig. Yet he has in every republican Question deserted and in some instances betrayed Us. I know not that there is such a thing as buying Members, but if there is he is certainly sold.
I never was treated with less respect than this day, Adams behaved with Studied neglect inattention He was snuffling up his Nose, kicking his heels or talking & Sniggering with Otis, the Whole time, I was up. Butler, tho' no Man bears a thing of this kind with less temper, engaged Wingate formed another knot. Mr. Morris went out. The Door Keeper was kept on a continual trot, calling out Strong, Patterson, Henry, Carrol & ca.-- I might he have said more, but it was Useless.}
July 15, 1789
Senate met. Mr. Carrol shewed impatience to be up first. he got up and spoke a considerable length of time the burthen of his discourse seemed to be want of power in the President and a desire of increasing it, great complaints of what he called the Atrocious assumption of power in the States. Many allusions to the power of the british kings, the king can do no Wrong, if anything improper is done, it should be the Ministers that should answer. How strangely this Man is changed. (The Collection bill was called for and read for the first time). now Elsworth rose with a most lengthy debate. The first Words that he said, were, in this case the Constitution is our only rule for we are sworn to Support it. but neither quoted it nor ever named it afterwards except as follows by allusion. He said I buy a Square Acre of land I buy the Trees. Waters & every thing belonging to it. the executive power belongs to the president. the removing of officers is a Tree on this Acre. the power of removing is therefore his, it is in him, it is no where else. thus we are under the necessity of ascertaining by implication where the power is, he called Docr. Johnson Thomas Aquinas, by implication too, & said things rather uncivil of some other of his opponents. most carefully did he avoid entering on the Subject of impeachment. after some time however he got fairly on new ground lamented the want of power in the President. asked did we ever quarrel with the power of the Crown of Great Britain? No, We contended with the power of the parliament. no one ever thought the power of the Crown too great. said he was growing infirm should die and should not see it, but the Government would fail for want of power in the President. he would have power as far as he would be seen in his Coach and Six, WWe must extend the executive Arm. Mr. Lee Yesterday had said something about the Dutch. if we must have examples said he let Us draw them from the People Whom we used always to imitate, from the nation Who have made all others bow before them. and not from the dutch who are divided & factious. He said a Vast deal more but the above was all I minuted down at the time-- Mr. Izard rose and answered. Mr. Butler rose and spoke. it was after 3 Mr. Lee rose said he had much to say, but would now only move and an adjournment. as it was late the House accordingly adjourned. I have seen more caballing and meeting of the Members in knots this day, than I ever observed before, as I came up Stairs Elsworth, Ames and Mr. Morris stood in a knot. up stairs soon after, Elsworth, Carrol & Strong got together, as soon as the house adjourned Carrol took Patterson aside. and there seemed a General hunt and Bustle, among the Members, I see plainly public speaking on this Subject is now lost Useless. and we may put the question when we please, it seems as if a Court party was forming, indeed I believe it was formed long ago.
July 14, 1789
The Senate met, and One of the Bills for organizing one of the public departments, That of foreign affairs was taken up. after being read. I begged leave of the Chair to Submit, some general Observations which tho apparently diffuse. I considered as pertinent to the bill before Us, the first Clause of which was there shall be an executive department & ca. there are a number of such bills, and may be many more, giving tending to direct the most minute particle of the Presidents Conduct. if he is to be directed how he shall do every thing it follows, he must do nothing without direction, to What purpose then, is the executive power lodged in the President, if he can do nothing without a law directing the mode Manner and of Course, the thing to be done. May not the Two Houses of Congress on this principle pass a law depriving him of all power. you may say it will [lined out] not get his approbation. but Two thirds of both Houses will make it a law without. him. and the Constitution is undone at Once. Gentlemen may say how is [Page 110] this the Government then to proceed on these points. the simplest in the World, the President communicates to the Senate that he finds, such & such officers necessary in the Execution of the Government. and nominates the Men. if the Senate approve they will concur in the Measure. if not refuse their Consent & ca. When the appointments are made, the President in like Manner communicates to the H. of R. that such appointments have taken place & requires adequate Salaries. then the House of Representatives might shew their concurrence or disapprobation by providing for the Officer or not. I thought it my duty to mention these things, tho' I had not the Vanity to think, I would make any prosalites in this Stage of the business, and perhaps the best apology I could make was not to detain them long. a long desultory I likewise said That if the Senate were generally of my mind, a Conferrence between the Houses should take place. But the Sense of the House would appear on taking the Sense of the House Question on the first Clause. The first Clause was carried, now came the second Clause, it was for the Appointment of a Chief Clerk by the Secretary, who in fact was to be principal Whenever the said principal Officer shall be removed from Office by the President of the United States. There was a blank pause at the End of it. I was not in haste but rose first. Mr. President-- Whoever attends Strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one, no less than that of being the great Check, the regulator & Corrector, or, if I may so speak, the Balance of the Government. In their legislative Capacity, they not only have the Correction of all bills Orders Votes or resolutions but may originate any of them, save Money bills, in the executive branch they have likewise power to check and regulate the proceedings of the President, Thus Treaties the highest and most important part of the Executive department, must have a Concurrence of Two thirds of them. All appointments under the President and Vice President. must be by their advice and Consent, unless they concur in passing a law divesting themselves of this power. by the Checks which are intrusted with them upon both the executive and the other branch of the legislature, the Stability of the Government is evidently placed in their hands. The approbation of the Senate was certainly meant to guard against the Mistakes of the President in his appointments of officers. I do not admit the Doctrine of holding Commissions during pleasure as constitutional, and shall speak to that point presently. but supposing for a moment, that to be the Case. is not the same guard equally necessary to prevent removals improper steps in removals as in appointments, certainly the Spirit of the Constitution common inference or induction can mean nothing Short of this. It is a maxim in legislation as well as reason, and applies well in the present Case, that it requires the same power to enact repeal as to enact the depriving power should then be the same as the appointg. power. But was this a point left at large by the Constitution? [Page 111] clearly otherwise. five or Six times in our Short constitution is the tryal by impeachment mentioned-- in One place, the H. of R. shall have the sole power of impeachment-- in another the Senate shall have the sole power to try impeachments. in a third Judgt. shall not extend further than to removal from Office and disqualification to hold or enjoy Offices & ca. the President shall not pardon in Cases of impeachment. the President Vice President and all civil officers of the United States shall be removed from Office on impeachment & ca. no part of the Constitution is so fully guarded or more clearly expressed than this part of it. and most justly too, for every just good Government guards the reputation of her Citizens as well as their life and property. for every turning out of Office, is attended with reproach & the person so turned out is Stigmatized with infamy. by means of impeachment a fair hearing and Tryal is secured to the party. without this What Man of an independent Spirit would accept of such an Office, of What Service can his Abilities be to the Community if afraid of the nod or beck of a Superior, he must consult hims will in every Matter. Abject Servility is most likely to mark the line of his Conduct, & this on the One hand will not fail to be productive of despotism and Tyranny on the other. for I consider mankind as composed nearly of the same Materials in America as in Asia, in the United States as in the East Indias. The Constitution certainly never contemplated any other mode of removing from Office. the Case is not omitted here the most ample provision is made. if Gentlemen do not like it, let them obtain an alteration of the Constitution, but this cannot be done by law. if the Virtues of the present Chief Magistrate are brought forward, as a reason for vesting him with extraordinary powers. No nation ever trod more dangerous ground. his Virtues will depart with him. but the powers which You give him will remain, and if not properly guarded will be abused by future Presidents; if they are Men. This however is not the Whole of the Objection I have to the Clause a Chief Clerk is to be appointed, and When and this without any advice or Consent of the Senate. This Chief Clerk, on the removal of the Secretary will become the principal in the Office, and so may remain during the Presidency. for the Senate cannot force the President into a nomination, for a new Officer. This is a direct Stroke at the power of the Senate. Sir I consider the Clause as exceptionable every way, and therefore move You to Strike it out.
Langdon Jumped up in haste hoped the Whole would not be Struck out. but moved, that the clause only, of the President appoint removing, should be Struck out. up rose Elsworth & a most elaborate Speech indeed did he make, but it was all drawn from Writers on the distribution of Government. the President was the Executive officer he was interfered with in the appointment it was true, but not in the removal. the constitution had taken one but not the other from him. therefore removal remained to him intire-- he carefully avoided the Subject of impeachment-- he absolutely used the following Expressions with regard to the President. "It is Sacrilege to touch an Hair of his head, and, we may as well lay the President's head on a block and strike it off, with one blow" the way he came to Use these Words was, after having asserted, that removing from offices was his priviledge. We might as well do this, as deprive him of it. he had sore Eyes and a green silk over his eyes them, on pronouncing the last of the Two Sentences, he paused put his hand kerchief to his face and either shed tears or affected to do so. When he sat down, both Butler and Izard sprung up. Butler however continued up. he began with a declaration, that he came into the House in the most perfect State of indifference, & rather disposed to give the power in question to the President But the arguments of the Honorable. Gentleman. from Connecticut had, in endeavouring to support the Clause, convinced him in the clearest Manner, that the clause was highly improper and he would vote against it-- Izard now got at it. and spoke very long against the clause. Strong got up for the clause and a most confused speech he made indeed-- I have notes of it, but think it really not worth answering, unless to shew the folly of some things which he said-- Docr. Johnson rose and told Us twice before he proceeded far, that he would not give an Opinion on the power of the President, This Man's conscience will not let him be a thorough paced Courtier-- Yet he wished not to loose his interest with the President. however his Whole argument went against the Clause. and at last he declared he was against the Whole of it-- Mr. Lee rose he spoke long and pointedly against the clause he repeated many of my Arguments, but always was polite enough, to acknowledge the Mention I had made of them. he spoke from a paper which he held in his hand. he continued untill it was past 3 O'Clock and an adjournment was called for and took place-- in looking over my notes I find I omitted to set down Sundry arguments which I used, but no matter. I will not do it now.
New York, July 12, 1789
I am happy to find that you approve the decision of the House upon the question of the President's power of removal from office. The men of information and property, who are stigmatized as aristocrats, appear to me more solicitous to secure liberty than the loudest champions of democracy. They not only wish to enjoy, but to perpetuate liberty, by giving energy enough to government to preserve its own being, when endangered by tumult and faction. A mob is despotic per se,and it tends to destroy all liberty. One Abner Fowler, it is said, in 1787, would have the town instruct their members against the constitution-- for, he observed, it would destroy their liberties, they could never have another mob. I wish that his judgment may be verified. The executive branch of our government is not strong. I am sure the people cannot be interested on the side of depriving him of any part of his constitutional powers. Those who argued on that side, seemed to consider themselves as the defenders of liberty-- pointed out the danger to the people, and the shameful usurpation of power, in deciding as it was decided. They said the constitution was not express in giving the power to the President-- constructions were, they said, replete with danger, and then they proceeded, upon the strength of construction, to prove that the Senate has the power of advice in removals. This opinion seemed to nourish their zeal, and made them inflexible in their opposition to any infringement of the constitution. This will appear to the world a serious proof of the degree in which the understandings of men may be misled, when their passions are heated. This debate seemed to menace faction, but the good humour of the House has returned, and business goes on again as agreeably as formerly. To whatever cause it may be owing, the fact is certain, that there is very little of party spirit in our house, and less seeming intrigue and cabal than I have ever seen in any public body.
Our progress has been slow. There seems in the public to be a general disposition to excuse it, to bring into view the complex nature of the business, and to call it by the name of wisdom and prudent caution. We have certainly proceeded more tardily then I expected, or will affect to approve. But the application to business has been unexceptionable. The whole body actually attends. Not a member absent, except four or five with leave. Punctual attendance of the whole, and at the hour, is given; and very few retire, unless to drink water in the committee room, during the five hours attendance. Our collection bill has been pushed as diligently as I ever knew business prosecuted. It is reported by the committee of the whole to the House, and will be sent in a few days to the Senate. The judicial is before the Senate still. They have laboured upon it as hard as so many schoolmasters or merchants' clerks. I expect it in our House in six or eight days. It will be debated warmly, and I am afraid will not be treated as a system, but made patch work by fanciful amendments. We begin to talk of a recess in August. I wish it most ardently, but am afraid it will not take place till September.
July 9, 1789
Still much afflicted with the Rheumatism attended this day the usual time at the Hall, a great part of this day was taken up with light debates chiefly conducted by the lawyers on both sides, and the Object seemed to be the encreasing the powers of Chancery, Mr. Read a Man of Obstructed Elocution was excessively tedious. Elsworth has Credit with me, I know not however whether it be the Effect of Judgt. Whim or Caprice, but he is generally for limiting the Chancery powers. Mr. Morris and myself differed in every Vote this day. We always have differed on the Subject of Chancery. This day I got Copies of the 3 Bills for the great departments. Besides being calculated on a Scale of great Expence. Two Grand Objections offer themselves on these bills-- the lessining the power of the Senate, taking away from them any Vote in the removal of Officers, and the power of advising and consenting, in one Case of the first Consequence. and the other the placing the President above business and beyond the power of responsibility-- placing putting into the hands of his officers the duties required of him by the Constitution, Indeed these appear to me to have been the moving Reasons for bringing forward the bill at all. nor do I see the necessity of having made this business a Subject of legislation. the point of View in which it presented itself to me was. That the President should signify to the Senate. his desire of appointing a Minister of foreign affairs, and nominate the Man and so of the other necessary departments. if the Senate agreed to the necessity of the office and the Man they would concur, if not, they would negative. & ca. the House would get the [Page 105] Business before them when Salaries came to be appointed, and could then, give their Opinion by providing for the officer or not. I see this mode might be abused. But for the House of Representatives, by a side Wind, to exalt the President above the Constitution and depress the Senate below it, is. but I will leave it without a name. they know the Veneration entertained for General Washington. and believe the People will be ready to Join, in the Cry against the Senate. in his favour, when they endeavour to make him a party. they think they have fast hold of Us. and that we dare not, refuse our Assent to these bills, & so several of them have not failed to declare.
New York, July 6, 1789
Revd. and dear Sir
I duely received and with great satisfaction read your favour of the 29th of May, as well as the discourse with which you was so kind as to accompany it. Had I so long neglected acknowledging a simalar mark of friendship and kindness from some, I might justly have expected that the omission would have been viewed as faulty; but I am perswaded that your candour, and I trust your perswasion belief of my sincere affection for you, will induce you to accept of my apology. Altho., if you should judge from what has as yet publickly been appeared to be done by congress, you might be ready to think that I have time enough t for private correspondence; yet I have not always found it so. When the hours of Congress are over, I have am often in company either at home or abroad, or have some business indispensable to attend to; or need some relaxation & amusement; whereby I am illy disposed to write. Besides I recollect your observation, that the doings of Congress which are published, you have come to your knowledge ^ in another channel ^ , & therefore wish only for any private anecdotes that might be worth relating. These I conceive do not occur often. There had as yet been as good harmony between the two houses, as well as between the respective members of each house as could be expected. Whilst the Impost bill was under consideration there was sometimes suggested a jealousy respecting the different interests of the Northern & Southern states. But they were kept out of sight as much as possible, & every suggestion of the kind disapproved of by the prudent & moderate [lined out] I believe the rate of duties as finally agreed on is as impartial as could be expected & that no great complaints will arise from any quarter. The check of the Senate has been in favour of the Eastern states. In the debates respecting titles the house of Representatives were generally in opinion against giving any, the majority of the Senate were of opinion that they were justifiable by the Constitution & convenient; but were not disposed to be obstinate in the dispute. There is another question which I think will be likely to produce a dispute between the two houses, that is, who shall remove from office (if there is occasion) those who hold their places during pleasure. The Representatives have disputed that point warmly among themselves & a majority are for vesting it solely in the President. I do not know how the Senate will determine on the question, but expect they will think the advice of the Senate proper for removal as well as appointment. If this should be the case I think the adherence on both sides will be obstinate. I know that it is natural for the two branches of the Legislature to be jealous of each other, & tenacious of their own rights; and the Senate by reason of their long duration in office, may in some future time be disposed to extend their powers as far as possible & encroach upon the Executive as well as other part of the legislative power, but at present I am perswaded there is no such disposition. And I beli[e]ve that the people in general will often derive considerable advantages from the check of the Senate, over so numerous a branch of government, as the other house will consist of -- Their decisions will sometimes be in danger of being tumultuous & may be the sudden effects of heat & party. The Senate being a smaler & older body of men, & being appointed equally from the small & large states will be more likely to be deliberate & impartial. This you may say is owing to my partiality. It may be so & I will say no more about it. The theoligical part of your letter is very agreeable to my sentiments & very pleasing to me, but I can add nothing upon that subject which will be new to you. I thank you for your Sermon which I have read with attention & pleasure, as I shall every communication from you. Please to make my compliments to Mrs. Belknap, also to Mr. Elliott & Mr. Clarke. I hope to have the pleasure of seeing you all well in Boston by the beginning of Sepr.
And am with much affection & esteem your very respectful friend & humble Servant.
Paine Wingate
July 5, 1789
The Senate proceed in a few days to the discussion of the Bills, establishing the Grand Departmts.-- the Clause, vesting in the Presidt. alone, without the advice & consent of the Senate, the removal of the heads of those departmts. at pleasure, will occasion warm debates & probably [typed from printed copy from here] be rejected. On counting noses, those in favor of the Clause are Morris, Carrol, Strong, Elsworth, Patterson, Read, & Henry. Against it Langdon-- R. H. Lee, Grayson-- Izard, Butler-- Maclay, Elmer-- Wingate-- Dalton, Gunn, Few, Johnson, & Basset.
It was carried in our house by a small majority-- I take the numbers [to] be, were all the members present, about 35 for it & 24 against it: [On one] of the divisions, the numbers were, ayes 29-- noes 22-- Should the senate [stand firm], we must give way or lose the Bills.
The Principle of a strong government is carried to extremes by some persons here, especially those who expect either to be in high offices themselves or to be the cabinet council of the President. I conceive the Constitution intended the Senate to be the constitutional council of advice to the President. These high-flyers want to depreciate the Senate & substitute a privy council, behind the Curtain.
July 3, 1789
I have not yet heard from Charles County at which I am much astonished and my Heart begins to misgive me-- I really fear some Calamity has Still been chasing our unfortunate Family.
I have had a second attack of the same complaint I wrote Doctor Brown about-- It Came on that Day Fortnight after the first. The Weather was the same and at both Days I heated myself in Walking. But this second attack has been plainly marked as having its Seat in the Stomach and in fact a nervous Colick-- after the Violence of the pain had gone off I took it into my Head to take a Puke to relieve the prodigious pressure of my Stomach-- and this resolution brought on another-- To send for a Physitian-- He is a sensible man-- Said it is a nervous affection-- gave me a purge Assef[oe]teda & Bitters-- Recommends the same regimen that Dr. Brown does-- I have confined my Self very much-- and the Day before I was taken had made a very fatiguing Speech in Congress. I really fear that I must Speedily adopt a plan that has some time been in my Head-- To settle on my plantation-- Quit the Law-- and go to work. We had a Question of Great importance in which all the Delegates who Speak at all were warmly Engaged-- It was to insert in the Bill for "Erecting the Department of Foreign affairs"-- these words-- That the officers-- "to be removeable by the President." This was Carried-- but afterward (while I was out of the House & Sick) it was altered. Those words were Stricken out-- But the Idea is Still in the Bill in Different language. You may see by the Constitution that-- "The Presidt. by and with the advice and Consent of the Senate is to appoint officers" & ca. -- And those who thought as I did wished to have the same mode of Dismissal-- or if that was not thought right to Leave the matter to the Legal Operation of the Constitution without undertaking any Construction which might in the end be found to be Contrary to the Constn.
The House of Delegates is a wise Body and upon the whole very cool and Polite. There is a great Deal of Speaking because there are a great many Speakers but Oratory is not much attended to-- reason is the thing that is heard. The Speakers are-- Ames, Maddison-- Sedwick-- Lawrance, Smith ( ^ S. Carlina ^ ) S. Carolina Vining, Benson White, Gerry, Boudinot Page Sherman (Roger) Livermore, Jackson Fizimons Stone (M. J. S.) and a great many others-- who occasionally make remarks-- I think you had better become a Subscriber to the Congressional register-- We go on Slowly but this is not owing to Idleness-- The Subject is Extensive and new-- No one Man can Grasp it we are obliged to avail ourselves of the Judgemt. and information of Every member present. Time must be taken for this and hence the fact is true the the position appears paradoxical that our tardiness is a proof [of]our Industry. Could we consent to pass Bills as Committees readily bring them in-- or Swallow propositions without examination we should go on fast-- into errors.
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
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.
Frederick A. Muhlenberg to Richard Witty Peters
0 comments Posted by HCPS at Saturday, June 20, 2009New 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
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