The Founders' Blog

June 25, 1789

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

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

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

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

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

I am Dear Sir Your Most Obedt. servant

P. Muhlenberg

P.S. Mr. Boudinotts Motion is withdrawn

New York, June 23, 1789

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

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

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

Wednesday Evening, June 25

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

New York, June 21, 1789

Dear Sir

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

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

New York, June 18, 1789

Sir,

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

Sir
Your most obedt.
humble Servant

Fredk. A. Muhlenberg

June 19, 1789

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

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

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

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

June 18, 1789

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

June 15, 1789

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